NOTICE OF FILING This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on 17/09/2014 4:34:00 PM AEST and has been accepted for filing under the Court’s Rules. Details of filing follow and important additional information about these are set out below.

Details of Filing Document Lodged:

Outline of Submissions

File Number:

VID336/2014

File Title:

Matthew Hurd & Ors v Zomojo Pty Ltd

Registry:

VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA

Dated: 18/09/2014 8:41:15 AM AEST

Registrar Important Information

As required by the Court’s Rules, this Notice has been inserted as the first page of the document which has been accepted for electronic filing. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties. The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry.

Federal court of Australia District Registry: Victoria Division: General

VID 336/2014

Appellant: Matt Hurd Respondent: Zomojo Pty Ltd Appellant’s Supplementary Outline of submissions 1. The Appellant and Respondent in VID 336/2014, and related parties such as those listed in VID 1478/2011, have had an acrimonious history in the Victoria Registry (VR) and the Federal Court of Australia (FCA). This is supported by the actions of the Registrar in the initial hearing of the Zeptonics liquidation matter declaring it contentious, refusing to hear the matter before him and immediately passing it on to be heard by an FCA judge. Criminality by Zomojo, its legal representatives and related parties 2. It is contended that the conduct of behaviour in the trial by the Zomojo and its representatives in the lower court exceeded the bounds of the robust behaviour that may be accepted by a court, even within Australia’s adversarial system of legal justice. It is argued that the criminal behaviour alleged to have occurred, affected the trial and made it procedurally unfair and lacking in natural justice. Some of the behaviour was brought to the attention of a docketed judge and ignored. Other such behaviour was unable to be answered due to the lack of representation of the corporates. The Legal Services Commissioner (LSC) dismissed a complaint citing that the element of that conduct before it was before the FCA and its proper assessment belonged before the Court and not the LSC. There is an obligation on the legal representatives and other parties on both sides to act lawfully, ethically, and assist the court in finding justice. There is an obligation for a judicial officer in court to act when a legal representative’s conduct is inappropriate. The grounds for appeal cited in the new draft notice of appeal in paragraphs 1 and 2 are to support this proposition. The grounds of appeal in paragraphs 1 and 2 are also included to support the onerous proposition that it would be appropriate for the Court to grant the remedy of a constitutional writ of Certiorari.

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3. The parts and sections quoted regarding criminality are from Hurd’s lay reading of the Criminal Code Act 1995 and the Crimes Act 1914. Hurd was frustrated by the fact that a number of parties, but Dr Greg Robinson and Mr Matthew Critchley in particular: a. Made false statements to the FCA, knowingly conspired to make such false statements (as admitted by Robinson in his oral evidence); b. Attempted to intimidate Hurd into withdrawing his affidavit by make vigorous threats when they knew Hurd to be telling the truth; c.

Did not disclose a grant of $200,000 Leong received in partnership with Zomojo before making his second expert testimony in which Leong made inappropriate declarations; and;

d. Made false claims of work done or not done to the court though they had the evidence with them that the statements they were making were false in addition to other misleading or false statements. One of the interesting pieces of false statement was before Honourable Justice Jessup where uncontested statements and evidence were put forward by Dr Collins SC that a certain patent, the “negative latency patent”, had not been assigned. It was a contentious issue that Mr Critchley knew well to be assigned as it was a core matter of the contempt proceeding before Honourable Justice Tracey. A simple one minute search of the Internet database from WIPO confirms that the patent was assigned by mid 2013 as Zomojo’s legal representatives were having dialogue with WIPO regarding their patent. This false statement lead to His Honour ordering patent assignments to Zomojo that were unwarranted in addition to ill-conceived adverse findings regarding patents that had already been assigned. It is put that Dr Collins SC had a duty to care to the court, especially given Mr Critchley’s history, and was reckless in making his false statement, which is a crime, even if he was just parroting Mr Critchley’s false statements. Not only was the making of false statements a crime in part because it was an attempt to pervert justice, justice was indeed successfully perverted as Honourable Justice Jessup was hoodwinked and His Honour granted Zomojo’s requests as he had no basis for believing that the legal representatives were acting criminally. Simply put, Zomojo and their representatives committed crimes that resulted in perversions of justice. Such matters are beyond the normal cut and thrust of adversarial justice and should be properly weighed by the appellate court.

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Apprehended Bias 4. The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 and Barakat v Goritsas (No 2) [2012] NSWCA 36. 5. The claim of apprehended bias by both Gordon J in the original trial in the court below, paragraph 3 of the draft notice of appeal, and, somewhat unusually, by court officers unknown, in paragraph 4 of the draft notice of appeal is important. Notably in paragraph 3 and paragraph 4 two broad notions are introduced. Firstly, in paragraph 3 it is argued that the whole of the conduct of Gordon J, not just that relevant to Hurd as an individual, in the matter needs to be considered in the assessment of any apprehended bias and consequent potential. Secondly, suggestions of apprehended bias emerged from the VR around the trial of VID 1478/2014 which was confirmed and reinforced by other VR decisions and behaviours in other matters related to Zomojo and the Respondents to VID 1478/2011. 6. An association may give rise to a reasonable apprehension of bias without there being a connection between the association and one of the issues in dispute: Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009 NSWCA 300]. An interlocutory application was made on 27 Feb 2103 and served when stamped and returned to Hurd on 1 March 2013 for the withdrawal of Gordon J primarily for the reason of apprehended bias in 2013. Gordon J withdrew shortly after receiving the parties’ submissions noting that it was not relating to apprehended bias which she denied. Dr Collins SC wrote a memorandum to the court asking for reconsideration (MJH-11, affidavit dated 31 July 2014, pages 77-79). Hurd’s submission to the court

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regarded the withdrawal request is on file with the VR and is including as MJH-12 pages 80-85. 7. Additional information regarding apprehended bias became available subsequent to the application and submission referred to in the prior paragraph. In summary of the various concerns regarding Gordon J are as follows: a. Unbalanced treatment of subpoena applications prior pre-trial; b. Sarcastic comments by Gordon J about New South Welshman directed at the Zeptonics parties at trial not captured on the transcripts (Hurd is Tasmanian for the record); c.

Gordon J was and continues to be employed at Melbourne University at the Law School;

d. Professor Patricia Desmond, Dr Greg Robinson’s wife, is employed by Melbourne University; e. Greg Robinson and Patricia Desmond donated at least $200,000 to the University of Melbourne; f.

HCA’s Hayne J’s has a friend, Michael Robinson AO, who used to be Gordon J’s boss at Her Honour’s prior law firm;

g. Professor Patricia Desmond has done work for a health firm chaired by Michael Robinson AO and has attended dinner with him; h. Greg Robinson submitted an affidavit saying he had lunch with Michael Robinson AO in February 2013 at the Melbourne Club; i.

Dr Matt Collins SC, Zomojo’s principal barrister, has worked as a Fellow at Melbourne University since 2012;

j.

Dr Michelle Sharpe (the junior to Collins SC at trial), lectured at Melbourne University from 2007 to 2011 and remains listed as a member of Competition Law and Economics Network at Melbourne Law School which is a key area of interest to Gordon J;

k. Ms Kate Dillon (nee Desmond) was one of a few “linked-in” contacts with Zomojo’s Greg Robinson and was awarded Melbourne Law School Masters Award - Davies Collison Cave Prize for Copyright Law 2012, the year of the trial as she completed her Masters in the very Melbourne department Gordon J taught and Ms Dillon (nee Desmond) is now (from Jan 2014) working at the same law firm in Melbourne as is Ms Janet Whiting, the original Corr’s partner in charge of the Zomojo matter; and,

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l.

Many other matters relating to the errors mentioned in the prior submissions and affidavits to the court and, in particular to paragraphs 5 to 18 in the grounds of appeal of the draft notice of appeal.

8. The claims made in the grounds of appeal against the VR can be summarised as the following: a. Apparent leaking of information from the VR files to Zomojo before it was served as a explanatory affidavit was received from Corrs Chambers Westgarth before the matter was even served (see MJH-7 & MJH-7D); b. Apparent forging of a “received” date-stamp on MJH-7 / MJH-7D which had the appearance of backdating after the actions of the VR were queried due to (a); c. The very idea that the proceedings were filed at the VR when over forty of the combined staff were based in Sydney, the registered offices were in Sydney and prior legal counsel for Zomojo was based in Sydney (BHF) which only now in hindsight makes sense due to the advantages Zomojo gained from certain officers of the court; d. Unusual activity by some VR staff on some occasions when Hurd attended the Registry window in Melbourne; e. An unusual request by the Registrar in the liquidation hearing for Zeptonics to nominate a judge and court they would be happy with. The subsequent request for Marshall J, who had previously ruled against Zeptonics and Hurd, only to be ignored and Davies J appointed who was a newly minted FCA judge and someone worked in the same tax faculty as Gordon J in the tax faculty at Melbourne University Law School suggesting convenient bias especially considering some unusual conduct from Davies J; f. The unusual actions of Registrar Burns in the liquidation hearing allowing subpoena’s to be issued on several days before leave had been granted for the court to purse the matter; g. Registrar Burns offered for himself to withdraw to Zeptonic’s Barrister Mr Nick Wallace on the Friday of that week as he stated he had a friendship with Zomojo’s Greg Robinson when a subpoena was contended and Mr Nick Wallace withdrew on instruction from Zeptonics to save money as it was clear to Zeptonics that Registrar Burns intended to make such a thing expensive;

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h. Registrar Burns continued to act in favour of Zomojo and against the Zeptonics companies and also against Ark International Group for some days after that Friday until he withdrew citing a conflict when it came to a matter of costs being awarded to Ark or Ark’s Mr Maddock against the interests of Zomojo; and i. For some reason a rather long and contentious costs hearing that continues where Ark was awarded costs of some hundreds of thousands of dollars against Zomojo has been transferred from the VR to the Tasmania Registry (Registrar Scott) which appears unusual and perhaps evidence that the VR has some concerns regarding apprehended bias. 9. The forging of the date stamp by the VR on the interlocutory application (MJH-7 and MJH-7D) seemed to be designed to obscure inappropriate activity by some unknown party at the VR. Such clumsy fraud, when combined with what is alleged to be the fraudulent actions of Registrar Burns in the Zeptonics liquidation process, indicate there may have also been further inappropriate activities from unknown parties within the VR which have passed undetected. In the orders sought by Hurd, proposed order 8 seeks to give the Court the latitude to refer or delegate any further review as the Court sees fit as it would seem to be in the interests of the court to have a full consideration of such matters which is beyond the scope of this appeal but in the interests of the FCA’s administration of justice. 10. The claimed apprehended bias, bias or negligence resulted in breaches of procedural fairness and natural justice. The denial of allowing the hearing of evidence, as agreed, for the cross-claim is a vehement example. 11. A prerogative writ, or constitutional writ, of Certiorari would be an onerous outcome in a trial which has cost both sides over a million dollars each to pursue as well as much court effort. Such a remedy may issue on the satisfaction of three requirements: a. the decision-maker has legal authority to determine questions which affect the rights of subjects; b. that the body owes a duty to act judicially; c. the body acts in excess of its legal authority based on particular grounds of abuse: i. Procedural fairness ii. Errors of law; iii. Fact finding; and

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iv. Exercise of discretionary power. 12. It is argued that the conditions required for Certiorari in proceeding paragraph are met by the conduct of Gordon J and the VR. Pursuant to s 39B of the Judiciary Act 1903 (Cth) the FCA has jurisdiction conterminous with the HCA under s 75(v) of the Constitution to issue such a writ. 13. The standing of a person seeking such a writ should be that of an “aggrieved person” which, according to the Queensland decision of R v Knyvell; ex parte Weber ([1929] St.R.Qd. 16; and see De Haber v. Queen of Portugal [1851] 17 Q.B. 171) could be as wide as “any person” following the tradition that unlawful dealings of tribunals under the cloak of law should be allowed to be challenged by any subject. The history of this relatively loose requirement for standing culminated in the decision in Attorney-General of Gambia v N’Jie ([1961] A.C. 617.), where the interpretation of the term “person aggrieved” was effectively “any person.” 14. The matters in the grounds of appeal relating to Honourable Justice Jessup are paragraphs 19, 20 and 21 of the draft notice of appeal. 15. Honourable Justice Jessup indicated a reliance on Gordon J’s interpretation of Matt Hurd’s performance in the witness box in the prior trial in his judgment. His Honour’s judgment stated within paragraph 39 [Zomojo Pty Ltd v Hurd (No 4) [2014] FCA 441], “In my view, it comes ill from the mouth of someone who has enticed employees away from their employer in circumstances of the kind referred to by Gordon J to advance these kinds of nice distinctions in the choices made by the employer to replace the range of skills that it lost.” Brennan v Brennan [Brennan v. Brennan

[1953] HCA 28 ; (1953) 89 CLR 129] makes it clear that risks exist in

continuing a trial where a judge is no longer available. Those remarks indicate His Honour’s mind was clouded by witness testimony not heard nor seen by His Honour’s own self as is required. Zomojo pointed out in their own memorandum to the court on 23 April 2013, [MJH-11 from Matt Hurd affidavit dated 31 July 2014, pages 77-79] paragraph 7, “Any constitution of the court in part-heard proceedings may be an irregularity warranting intervention on appeal or review to require a new trial de novo. In most cases, it will be gravely objectionable for a second judge to proceed from the stage a hearing had reached before a first judge, rather than recommencing to hear the whole suit de novo”, with reference by Zomojo to Brennan v Brennan (1953) 89 CLR 632-640-1 (Dixon J). 16. Paragraph 19 from Hurd’s draft notice of appeal dated 8 September 2014, refers to damages found by Honourable Justice Jessup requiring a reimbursement of some of

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Hurd’s salary due to breaches of the Service Agreement, his employment contract. This decision sets an Australian precedent and relied upon His Honour reaching back into UK law whereas Hurd argues that such an Australian precedent is an error where Zomojo had not proved a loss; was not entitled to such a claw-back of time when the uncontested evidence from Hurd was that he worked more hours than required for Zomojo; it was an error for work done whilst Hurd was leave to be considered; and the damages did not reflect equity considering the other rewards Zomojo received. His Honour seemed to agree with the contention that work on leave should not be covered where the following dialogue occurred in court with Zomojo’s counsel suggesting it was an appeal point, from the Auscript transcripts of VID 1478/2011, 26 March 2014, partial pages 52 to 53:

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17. In summary, VID 1478/2011 and consequent matters were a mess and continue to be one. Criminality has occurred by Zomojo, its legal representatives and perhaps others. Elements in the Victoria Registry have appeared to besmirch the good reputation of other hard working staff in the VR by their actions. It would be hard for a reasonable layperson to consider Gordon J’s judgment, orders and other behaviour impartial. HCA’s Hayne J made it clear with respect to apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, that it is insufficient that justice be done, it must also be seen to be done for the public to have confidence in the Court. A prerogative writ of Certiorari and compensation of costs to the Appellant seems appropriate but insufficient. It is hoped that the appellate court will be able to make some order or recommendation for an inquiry or review of the matters raised to prevent such injustices from reoccurring. Dated 17 September 2014

____________________ Matthew John Hurd

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