Federal Court of Australia

IREN Ltd v PricewaterhouseCoopers Inc in its capacity as foreign representative of IE CA 3 Holdings Ltd [2025] FCAFC 52

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Background

1    IREN Ltd, previously known as Iris Energy Ltd, applies for leave to appeal against a decision of a Judge of this Court (PJ) which, inter alia, recognised a Canadian Bankruptcy Proceeding (Vancouver Registry Action No. S230488) as a “foreign main proceeding” within the meaning of Arts 2(b) and 17(2)(a) of the UNCITRAL Model Law on Cross-Border Insolvency, and PricewaterhouseCoopers Inc (PwC) (Trustee) as the “foreign representative” of the Proceeding within the meaning of Art 2(d) of the Model Law. IREN was not a party to the application before the primary judge but was granted leave to intervene pursuant to r 9.12 of the Federal Court Rules 2011 (Cth). The respondents did not oppose the grant of leave below.

2    IREN is incorporated in Australia. It is the ultimate holding company of the second and third respondents (IE CA Companies), which are incorporated under the laws of British Columbia. It is also each company’s second-largest creditor. IREN’s corporate group owns and operates Bitcoin mining data centres and undertakes Bitcoin mining. Three of the former directors of the IE CA Companies are also directors of IREN. Of the six directors of IREN, three reside in Australia, two reside in the United States, and one resides in the United Kingdom (PJ at [21]-[22]).

3    The IE CA Companies hold no tangible assets in Australia (PJ at [50]), have no Australian third-party creditors (PJ at [52]), and have all their bank accounts, offices and other property situated in Canada (PJ at [13]-[14]). Pursuant to an application by NYDIG ABL LLC, the only significant third-party creditor of the IE CA Companies, the Supreme Court of British Columbia (BCSC) appointed PwC as receiver of the IE CA Companies’ assets, undertakings, and property on 3 February 2023 (PJ at [30]). On 28 June 2023, pursuant to orders of the BCSC, the IE CA Companies were assigned into bankruptcy by PwC acting in its capacity as receiver, and PwC was appointed Trustee of the bankrupt estates.

4    Similar to the position that pertains under the Corporations Act 2001 (Cth) with respect to a liquidator, a trustee in bankruptcy in British Columbia has broad powers to examine persons who might reasonably be thought to have knowledge of the bankrupt’s affairs, but a court may limit the number and length of examinations to be undertaken (Bankruptcy and Insolvency Act, RSC 1985, c.B-3 (BI Act), s 163). Such examinations must be undertaken exclusively for the purposes of exercising the trustee’s powers under s 163 and the BCSC has supervisory jurisdiction over the trustee’s examinations.

5    Following resolutions passed at creditors’ meetings of the IE CA Companies, the Trustee filed an application in the BCSC seeking to examine six Proposed Examinees about their knowledge of the IE CA Companies’ affairs. In IE CA 3 Holdings Ltd (Re), 2023 BCSC 2120, delivered on 1 December 2023, Milman J at [47]-[48] ordered IREN to produce four of the Proposed Examinees for examination and, at [52], limited the Trustee’s examinations to up to one full day each with respect to two examinees of its choosing, and with respect to the remaining examinees, to half a day each. The parties were granted “leave to seek further directions following the completion of those examinations” if they were “unable to agree on whether others [were] required”: IE CA 3 Holdings at [53]. The two persons who were not required to be produced for examination in the Proceeding reside in Sydney. Justice Milman held, at [48], that “the Trustee has not presented a sufficient evidentiary basis to justify including [those two persons] on that list. Accordingly, my order will, for now, be restricted to the other four” (emphasis added).

6    The Trustee’s investigations to date have led it to the conclusion that IREN, as the parent company of the IE CA Companies, conducted the business of those companies “with very little regard to their separate corporate identities” (PJ at [23]). The Trustee explained below that it is presently of the view that certain current and former officers of the IE CA Companies, some of whom reside in Australia or otherwise outside Canada, may need to be examined, or re-examined as the case may be, in order to progress and complete its investigations into the affairs of those companies (PJ at [49]).

7    IREN complains that the decision of the Trustee to seek recognition in this Court of the Proceeding as a foreign main proceeding under Art 17 of the Model Law, and ancillary relief, under Art 21, was an abuse of process under Art 6 and was “not necessary to protect the assets of the debtors or the interests of the creditors” within the meaning of Art 21. On those bases, IREN seeks to appeal the decision of the primary judge to grant recognition of the Proceeding.

8    For the reasons that follow, we do not consider that the judgment of the primary judge is attended by sufficient doubt as to warrant its reconsideration, nor that substantial injustice will flow should leave be refused. Leave to appeal must therefore be refused.

The Model Law

9    The Model Law is enacted as Sch 1 to the Cross-Border Insolvency Act 2008 (Cth) (CBI Act), s 6 of which, with certain modifications, gives the Model Law the force of law in Australia.

10    The Preamble to the Model Law explains its object and purpose in the following terms:

The purpose of the present Law is to provide effective mechanisms for dealing with cases of cross-border insolvency so as to promote the objectives of:

(a)     Cooperation between the courts and other competent authorities of this State and foreign States involved in cases of cross-border insolvency;

(b)     Greater legal certainty for trade and investment;

(c)     Fair and efficient administration of cross-border insolvencies that protects the interests of all creditors and other interested persons, including the debtor;

    (d)     Protection and maximization of the value of the debtor’s assets;

(e)     Facilitation of the rescue of financially troubled businesses, thereby protecting investment and preserving employment.

(Emphasis added.)

11    Article 1, as modified, provides for the scope of application of the Model Law as follows:

1.    The present Law applies where:

(a)     Assistance is sought in this State by a foreign court or a foreign representative in connection with a foreign proceeding; or

(b)     Assistance is sought in a foreign State in connection with a proceeding under [the Bankruptcy Act 1966 (Cth) or Ch 5 (other than Pts 5.2 and 5.4A) of the Corporations Act, s 601CL of that Act and Sch 2 to that Act]; or

(c)     A foreign proceeding and a proceeding under [the Bankruptcy Act or Ch 5 (other than Pts 5.2 and 5.4A) of the Corporations Act, s 601CL of that Act and Sch 2 to that Act] in respect of the same debtor are taking place concurrently; or

(d)     Creditors or other interested persons in a foreign State have an interest in requesting the commencement of, or participation in, a proceeding under [the Bankruptcy Act or Ch 5 (other than Pts 5.2 and 5.4A) of the Corporations Act, s 601CL of that Act and Sch 2 to that Act].

12    Article 20 concerns the effects of recognition of a foreign main proceeding. Pursuant to Art 20(1)(a), upon the grant of recognition of a foreign proceeding as a foreign main proceeding, commencement or continuation of individual actions or proceedings concerning the debtor’s assets, rights, obligations or liabilities is stayed. Section 16 of the CBI Act provides that the scope and modification or termination of, relevantly, the stay referred to in Art 20(1) is the same as would apply if the stay arose under Ch 5 of the Corporations Act (other than Pts 5.2 and 5.4A).

13    Article 17 sets out when a foreign proceeding shall be recognised and relevantly provides:

1.    Subject to article 6, a foreign proceeding shall be recognized if:

(a)    The foreign proceeding is a proceeding within the meaning of subparagraph (a) of article 2;

(b)    The foreign representative applying for recognition is a person or body within the meaning of subparagraph (d) of article 2;

(c)    The application meets the requirements of paragraph 2 of article 15;

(d)    The application has been submitted to the court referred to in article 4.

2.    The foreign proceeding shall be recognized:

(a)    As a foreign main proceeding if it is taking place in the State where the debtor has the centre of its main interests; or

(b)    As a foreign non‑main proceeding if the debtor has an establishment within the meaning of subparagraph (f) of article 2 in the foreign State.

3.    An application for recognition of a foreign proceeding shall be decided upon at the earliest possible time.

…

14    Article 2 sets out definitions and relevantly provides:

For the purposes of the present Law:

(a)    “Foreign proceeding” means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation;

(b)    “Foreign main proceeding” means a foreign proceeding taking place in the State where the debtor has the centre of its main interests;

…

(d)    “Foreign representative” means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding;

…

15    Article 6 is the public policy exception. It provides that the Court may refuse to take an action governed by the Model Law if “the action would be manifestly contrary to the public policy of”, relevantly, Australia.

16    Article 21, as modified, provides for additional relief which a court may grant upon recognition of a foreign proceeding. It relevantly provides:

1.    Upon recognition of a foreign proceeding, whether main or non‑main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including:

…

(d)    Providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor’s assets, affairs, rights, obligations or liabilities;

(e)    Entrusting the administration or realization of all or part of the debtor’s assets located in this State to the foreign representative or another person designated by the court;

…

(g)    Granting any additional relief that may be available to [the trustee (within the meaning of s 5(1) of the Bankruptcy Act) or registered liquidator (within the meaning of s 9 of the Corporations Act)] under the laws of this State.

2.    Upon recognition of a foreign proceeding, whether main or non‑main, the court may, at the request of the foreign representative, entrust the distribution of all or part of the debtor’s assets located in this State to the foreign representative or another person designated by the court, provided that the court is satisfied that the interests of creditors in this State are adequately protected.

3.    In granting relief under the present article to a representative of a foreign non‑main proceeding, the court must be satisfied that the relief relates to assets that, under the law of this State, should be administered in the foreign non‑main proceeding or concerns information required in that proceeding.

17    Article 8 concerns interpretation and provides:

In the interpretation of the present Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

18    As explained by the Full Court (Allsop CJ, Robertson and Griffiths JJ agreeing) in Akers v Deputy Commissioner of Taxation [2014] FCAFC 57; 223 FCR 8 at [27]-[28]:

The Model Law developed and adopted by UNCITRAL reflects the increasing importance of cross-border insolvency in a global economic system. In 1997, the United Nations recommended to its member States that they adopt the Model Law into domestic legislation. Australia has adopted it and made it domestic law by the CBI Act. A number of other countries have adopted it, including the United States, the United Kingdom, Canada, New Zealand, Japan and Korea. The Model Law does not require reciprocity of adoption by any other State for its operation according to its terms.

The Model Law finds its place in the private international law framework that preceded it. That framework was often expressed in terms of universalism and territorialism: see MGR Gronow, McPherson’s Law of Company Liquidation (Thomson Reuters, 5th Ed) Vol 1 at 17-051 [17.50]. Even before the Model Law, most developed jurisdictions adopted what might be called modified universalism, extending a degree of co-operation to foreign insolvency proceedings whilst also protecting local interests: see the discussion of Lord Hoffmann in In re HIH Casualty and General Insurance Ltd [2008] UKHL 21; [2008] 1 WLR 852 at 856-857 [6]-[9]. The degree of, and legal basis for, any departure from local law in the effects of that co-operation was a matter of debate, a debate reflected in the different views of Lord Hoffmann and Lord Scott of Foscote in In re HIH at [6]-[9] and [59], respectively.

(Emphasis added.)

19    It is important to understand that the scheme for recognition and enforcement under the Model Law is not based on reciprocity between jurisdictions – rather, it relies on the doctrine of comity: Felicity Deane and Rosalind Mason, “The UNCITRAL Model Law on Cross-border Insolvency and the Rule of Law” (2016) 25(2) International Insolvency Review 138 at 153. For that reason, it does not matter that the relief sought in one jurisdiction may not be identical to that which is available in another.

should Leave be granted?

20    IREN argues that a grant of leave to appeal is justified for four reasons.

21    First, it says the decision of the primary judge is attended by sufficient doubt as established by its three proposed grounds of appeal.

22    Secondly, it says the matter agitates important legal questions (see Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; 174 FCR 547 at [15]), including issues concerning the scope of this Court’s role in providing “assistance” under the Model Law, and is of broader public importance (see Cook v Pasminco Ltd [2001] FCA 1277).

23    Thirdly, it says it has a sufficient interest in the outcome of the appeal because, as a related party creditor of the IE CA Companies, of which two of the Proposed Examinees are directors, the Art 21 relief sought will necessarily concern its affairs.

24    Fourthly, the sufficiency of its interest is demonstrated by the procedural history, in particular, that the respondents did not oppose the grant of leave to intervene below, thereby acknowledging that IREN’s rights were sufficiently affected for the purposes of r 9.12 of the Rules. It points to the final determination by the primary judge of its interlocutory application and the adverse costs order imposed on it as supporting the appropriateness of a grant of leave.

Is the primary judgment attended by sufficient doubt?

Proposed grounds 1 and 2

25    By its proposed grounds 1 and 2, IREN submits that recognition under Art 17, and the grant of relief under Art 21, should have been denied by the primary judge as an abuse of process, viewed through the prism of both: (a) the scheme of the Model Law and the ‘modified universalism’ it adopts, and (b) domestic law and its rejection on public policy grounds of re-litigation or concurrent foreign proceedings.

26    It submits that the Trustee seeks to use recognition under the Model Law to revisit, and achieve a result, that interferes with the adjustment of rights as between the Trustee, the debtors and IREN already made in the Proceeding. IREN submits that “if a litigant seeks to use this Court as an instrument to bring about an abuse of the Model Law regime, the litigant’s conduct should be treated as an abuse of this Court’s processes that enlivens the public policy exception in Art 6”.

27    The Model Law refers in Art 6 to the impugned action being “manifestly contrary to public policy” (emphasis added). No uniform definition of public policy is provided in the Model Law, not least because the concept of public policy is deeply ingrained in national law and takes various forms. In some jurisdictions, the public policy exception is construed narrowly as applying only to the fundamental social, legal, political, and moral concepts of the national legal order, in particular, constitutional guarantees. In others, a broader interpretation permits the inclusion of any mandatory national law within the exception. It is nevertheless generally accepted that the use of the word “manifestly” adds something to the exception and so only matters of fundamental importance to a State fall within Art 6: Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-Border Insolvency (UNCITRAL Guide) at 52 [104].

28    This was acknowledged by the Full Court in Akers when drawing attention, at [40], to the Explanatory Memorandum to the Cross-Border Insolvency Bill 2008, which said, in terms identical to the UNCITRAL Guide passage:

The purpose of the expression “manifestly”, used also in many other international legal texts as a qualifier of the expression “public policy”, is to emphasise that public policy exceptions should be interpreted restrictively and that article 6 is only intended to be invoked under exceptional circumstances concerning matters of fundamental importance for the enacting State.

(Emphasis added.)

29    The primary judge was, with respect, correct to hold (PJ at [97]) that the international context in which the Model Law operates underscores the narrow scope of Art 6.

30    IREN identifies the relevant abuse in this case to be threefold.

31    First, it characterises the Trustee’s purpose in seeking recognition and ancillary relief as being “to circumvent restrictions it faced in the foreign main proceeding” in order to “assist in the pursuit of other litigation against the bankrupt”. In this context, as has been identified in Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) [2022] HCA 3; 275 CLR 508 at [19] per Kiefel CJ and Keane J, and at [131] per Edelman and Steward JJ, when assessing abuse of process, one is concerned with the “predominant” or “immediate” purpose. As Edelman and Steward JJ said at [132]:

Within the category of abuse of process by use of the court’s process for an illegitimate purpose, a distinction has been drawn between (i) a litigant’s immediate purpose in the sense of the end to be achieved and the means of doing so and (ii) the litigant’s ultimate purpose in the sense of their motive. The doctrine of abuse of process has been said to be concerned with the immediate purpose, not the ultimate purpose: “If the [immediate] object sought to be effected by the process is within the lawful scope of the process, it is a use of the process within the meaning of the law, though it may be [for an ultimate purpose that is] malicious, or even fraudulent”.

(Citations omitted.)

32    IREN does not challenge the findings of the primary judge, at PJ[48]-[49], as to the purpose for which recognition was sought. As was candidly put before the primary judge, the examinations in Canada “did not produce the level of information that the trustee requires to finalise investigations in respect of the affairs, property and dealings of the IE CA Companies”. Further, the Trustee considers that “there is limited utility in seeking to undertake further examinations in Canada pursuant to its powers under s 163(1) of the BI Act, particularly in circumstances where the IE CA Companies do not presently hold any assets in that jurisdiction”.

33    Nothing in that explanation tends to suggest an illegitimate immediate purpose on the Trustee’s part. To the contrary, the purpose accords with at least one of the statutory purposes identified in the Preamble to the Model Law, “the protection and maximisation of the value of a debtor’s assets”. Further, the Trustee’s purpose is to seek assistance in Australia in connection with a foreign proceeding, as provided for under Art 1(1)(a) of the Model Law.

34    Secondly, IREN submits that the assistance sought “directly interferes” with Milman J’s decision in the Proceeding “concerning the examinations that could reasonably achieve the purposes set out in s 163 of the BI Act”. It argues that the “metes and bounds” of the permitted examinations were set by Milman J and that it is an abuse to seek to expand them. The difficulty with IREN’s submission is that Milman J did not set the metes and bounds of the examinations – at least not in any permanent way.

35    Although the Trustee was permitted to seek further directions in respect of orders for further examinations it was not, in any event, required to do so. The power to conduct further examinations was found within the statute and was not restricted by the orders made by Milman J (PJ at [140]). IREN accepts that for the two persons in respect of whom Milman J declined to order examinations, the Trustee could either return to Milman J under the liberty granted, or conduct examinations before a BCSC registrar without the need for a court order following the making of a creditors’ ordinary resolution pursuant to s 163 of the BI Act.

36    Further, to the extent that Milman J restricted any powers relating to examinations, it was only in respect of the length and manner of the four examinations which he permitted.

37    Thirdly, IREN alleges that the Trustee has instigated “parallel litigation” which interferes with the BCSC Proceeding. As the Trustee submits, this allegation is misconceived. The very purpose of the Model Law is to enable concurrent proceedings in multiple jurisdictions, if necessary, in order to provide a mechanism for, inter alia, the fair and efficient administration of cross-border insolvencies and to protect and maximise the value of the debtor’s assets. The Trustee commencing recognition proceedings in this country is wholly consistent with that purpose. Although the BCSC may be said to have a general supervisory role in respect of bankruptcies in that jurisdiction, just as this Court has in respect of insolvencies under the Corporations Act, there was no evidence before the primary judge to indicate that the BCSC is currently seized of any matter relating to the Proceeding which is in any way impacted by the application for recognition.

38    In any event, as explained by the primary judge (PJ at [125]), the recognition of foreign proceedings, and the grant of power to local representatives to examine witnesses as if the representatives were liquidators under Pt 5.4B of the Corporations Act, “does no more than confer standing on local representatives to apply to the Court for orders for examination and does not affect the rights of individuals who will have an opportunity to challenge the examination, including as an abuse of process, at about the time of the application for and/or issue of the order or summons for examination”. As the primary judge observed (PJ at [130]), “It is difficult to see how conferring a right to conduct examinations is oppressive or vexatious or can amount to an abuse of process”. We respectfully agree.

39    Proposed grounds 1 and 2 do not cast sufficient doubt on the decision of the primary judge to justify the grant of leave.

Proposed ground 3

40    By proposed ground 3, IREN contends that the primary judge misconstrued and misapplied the test governing the grant of relief pursuant to Art 21 and so erred in finding that ancillary relief was “necessary” to protect the assets of the debtors or the interests of the creditors. IREN submits that both the primary judge, at PJ[169], and Gleeson J in Re Abate [2017] FCA 751 at [78], to which her Honour referred at PJ[168], adopted an overly liberal threshold for Art 21’s necessity criterion. IREN submits that, in accepting that “necessary” did not mean “essential”, both the primary judge and Gleeson J “erroneously treated an important protection in an international instrument as coextensive with a domestic court’s implied power to make orders that are reasonably required or legally ancillary to the accomplishment of express statutory remedies”.

41    IREN submits that, on a proper construction of Art 21, the primary judge should have found:

a.    that granting the relief sought would interfere with the relief granted by the BCSC; and

b.    that granting the relief sought would disadvantage both the examinees, by exposing them to further coercive processes, and the corporate group, for no identified and necessary gain.

42    We have already dealt with the first objection raised by IREN in the context of proposed grounds 1 and 2.

43    As to the second objection, IREN’s complaint ultimately rises no higher than that the primary judge did not expressly identify whether the relief sought would in fact protect the debtors’ assets or the creditors’ interests, or how it would achieve those ends. With respect, that is not what is required by Art 21.

44    The orthodox approach to the interpretation of the text of an international instrument, including one such as the Model Law which is not an international convention (Akers at [43]), is set out in Arts 31 and 32 of the Vienna Convention on the Law of Treaties 1969 and as discussed by the High Court in Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11; 275 CLR 292 at [38]-[39]. In accordance with those principles, the Model Law must be interpreted so as to give full effect to the ordinary meaning of the words used in their context and in light of its evident object and purpose. The text is not to be interpreted according to particular domestic rules of interpretation; rather, an international instrument should have the same meaning for all of the States Parties: Kingdom of Spain at [38]. So much is emphasised in Art 8 of the Model Law.

45    A court may have regard to extrinsic sources, which in this case includes the UNCITRAL Guide, in order to confirm the meaning of the words used in an international instrument, or to determine the meaning when it is ambiguous or obscure or leads to a manifestly absurd or unreasonable result: Vienna Convention, Art 32; Kingdom of Spain at [39]; CMA CGM SA v Classica Shipping Co Ltd (The CMA Djakarta) [2004] EWCA Civ 114; [2004] 1 Lloyd’s Rep 460 at [10] per Longmore LJ.

46    The text of Art 21(1) of the Model Law enables appropriate relief to be granted at the request of a foreign representative “where necessary to protect the assets of the debtor or the interests of the creditors”. The relief that may be granted is broad and is expressed in non-exclusive language, viz; under subparagraph (g) it extends to “any additional relief that may be available” under the laws of the State where recognition is granted. A “foreign representative” is defined under Art 2(d) as being, inter alia, the person or body authorised in a foreign proceeding “to administer the reorganization or the liquidation of the debtor’s assets or affairs”. Such a person or body may seek assistance in this country to invoke the mechanisms provided for by the Model Law so as to promote the objectives that are stated in the Preamble. Nothing in the text of the Model Law requires a gloss to be put on the text which would require a foreign representative to identify expressly how the relief sought would necessarily protect the debtors’ assets or protect the creditors’ interests. To impose such a gloss would render relief in the nature of orders for examinations otiose in many cases; a foreign representative is unlikely to be able to establish that an examination is essential for the protection of debtors’ assets or creditors’ interests until such an examination has occurred. Nor is that required (per Gleeson J in Re Abate at [78]). It is enough for the foreign representative to establish that the relief sought is appropriate and “needed” in order to fulfil its duties of protecting the assets of the debtors and the interests of the creditors: see Re Mackellar (Bankrupt) v Mackellar [2020] FCA 1151 per Derrington J at [61]:

The expression “necessary” does not require that the granting of powers under [Art 21] be absolutely necessary. Rather it should be taken as meaning that the granting of powers is desirable in the interests of ensuring that the foreign representatives have sufficient ability to carry out their functions so that the creditor’s interests can be advanced.

47    The correctness of the trial judge’s application of Art 21 can be tested by reference to Art 22, which enshrines protections for those who may be affected by the grant of relief under Art 21. In the present case, the primary judge was satisfied (PJ at [172]) that IREN’s interests would be adequately protected if the relief sought were granted, because the time at which IREN (or any proposed examinee) might object to the examinations has not yet arisen. IREN maintains the right to object if and when the Trustee applies for summonses for examination. By contrast, if the relief were refused, to the extent that the Trustee continues to seek information available in this country, the Trustee would potentially lose an opportunity of protecting the interests of the debtors or creditors.

48    The proposed ground 3 does not demonstrate that sufficient doubt attends the primary judge’s construction of Art 21 so as to justify the grant of leave.

Would substantial injustice flow?

49    Assuming, contrary to the conclusion we have reached, that the decision of the primary judge is wrong, IREN has not established that any substantial injustice to it would flow from a refusal to grant leave. It is not the subject of the relief that has been sought; rather, the relief is directed at the possible examination of two of its directors. They will have the opportunity to object to their being examined if and when that time arrives.

50    Further, to the extent that IREN contends it may suffer reputational and/or financial damage should the directors be examined, that will not be as a consequence of the grant of the relief itself, but a consequence of whatever evidence is given by the directors, again, if and when that time arrives.

Disposition

51    For these reasons, this is not an appropriate case for the grant of leave to appeal. We must refuse IREN’s application with costs.

Associate:

Dated:    11 April 2025