FEDERAL COURT OF AUSTRALIA

Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 [2008] FCA 543

SUPPLEMENTARY REASONS FOR JUDGMENT

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

THE APPLICATION OF FREEHILLS

WAD 188 of 2007

MCKERRACHER J

22 APRIL 2008 (SUPPLEMENTARY REASONS 29 APRIL 2008)

PERTH

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

SUPPLEMENTARY REASONS FOR JUDGMENT

1                     On 22 April 2008 I made orders in the following terms:

1.         The examinee’s motion pursuant to s 596 and s 597 of the Corporations Act 2001 (Cth) be dismissed.

2.         The plaintiff’s motion be allowed save that the transcript is to be signed by 16 May 2008.

3.         The examinee to pay the plaintiff’s costs to be taxed, if not agreed. 

2                     Subsequently submissions were received from the examinee that it was beyond the power of the Court to order that the transcript alone be signed without ordering that the written documents on which an examinee was examined also be signed.  The plaintiff disagreed. 

3                     The examinee also contended that if his argument was correct, then he had substantially succeeded and that he should also have costs of the dispute.  

4                     I do not agree with the submissions of the examinee.  It was no part of the examinee’s application that he was not required to sign the ‘written record’ either because the relevant documents were not attached to it, or that without the relevant documents being attached, requiring the examinee to sign the transcript was beyond power. 

5                     The order sought was that the plaintiff provide the examinee with copies of the documents or pages of the documents referred to in the examination, ‘for the purpose of the Examinee authenticating the transcript of that examination’. 

6                     I have held that authentication in that sense and as described in the supporting affidavit, is unnecessary.  I rejected the arguments made by the examinee about the supposed difficulty arising because he was unable to confirm that quotations from documents and references to portions of documents were accurate.  I held that insofar as accuracy was concerned, the only question of accuracy arising was whether the transcribed version of the examination accords in all respects with what was actually said at the examination. 

7                     I also concluded that for the purpose of s 597(14A) CA, that the written record there referred to in relation to inspection, included those parts of documents shown to the examinee and on which he was questioned.  In that regard, the approach I took was consistent with the approach taken by Campbell J in Winterbottom; Re Eurostar Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2003] NSWSC 633.  I can accept that there may be arguments to the contrary but from a purposive point of view, being able to inspect the documents in respect of which questions were asked is a practice which accords with the purpose of subs (14A) CA and I might add, commonsense. 

8                     There is no doubt that if the examinee had requested the Registry of the Court to permit him to examine the pages of the copies on which he was questioned, that the Registry would have done so, as they will do so now, when the examinee complies with the orders that have been made.

9                     It was for the reason that it was always open and will be open for the examinee to examine the pages of the documents on which he was examined, that it was unnecessary to accede to the examinee’s request that the plaintiff itself must make copies from the Court file of those documents on which the examinee was questioned and supply those to the examinee together with the transcript. 

10                  I have also been asked to review the costs order (par 3), although primarily on the basis of the foreshadowed success of the review of the authentication order (par 2).  As I do not propose to amend the authentication order, it follows that I will not amend the costs order.  While I did not accept all of the plaintiff’s arguments, it is clear that it has had substantive success and there is no reason why costs should not follow the event.  If costs cannot be agreed, I now indicate in these reasons that there should be modest provision in favour of the plaintiff on taxation for the supplementary argument pertaining to the examinee’s request that the orders of 22 April 2008 be varied. 

Associate:

22 APRIL 2008 (SUPPLEMENTARY REASONS 29 APRIL 2008)

PERTH

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

SUPPLEMENTARY REASONS FOR JUDGMENT

1                     On 22 April 2008 I made orders in the following terms:

1.         The examinee’s motion pursuant to s 596 and s 597 of the Corporations Act 2001 (Cth) be dismissed.

2.         The plaintiff’s motion be allowed save that the transcript is to be signed by 16 May 2008.

3.         The examinee to pay the plaintiff’s costs to be taxed, if not agreed. 

2                     Subsequently submissions were received from the examinee that it was beyond the power of the Court to order that the transcript alone be signed without ordering that the written documents on which an examinee was examined also be signed.  The plaintiff disagreed. 

3                     The examinee also contended that if his argument was correct, then he had substantially succeeded and that he should also have costs of the dispute.  

4                     I do not agree with the submissions of the examinee.  It was no part of the examinee’s application that he was not required to sign the ‘written record’ either because the relevant documents were not attached to it, or that without the relevant documents being attached, requiring the examinee to sign the transcript was beyond power. 

5                     The order sought was that the plaintiff provide the examinee with copies of the documents or pages of the documents referred to in the examination, ‘for the purpose of the Examinee authenticating the transcript of that examination’. 

6                     I have held that authentication in that sense and as described in the supporting affidavit, is unnecessary.  I rejected the arguments made by the examinee about the supposed difficulty arising because he was unable to confirm that quotations from documents and references to portions of documents were accurate.  I held that insofar as accuracy was concerned, the only question of accuracy arising was whether the transcribed version of the examination accords in all respects with what was actually said at the examination. 

7                     I also concluded that for the purpose of s 597(14A) CA, that the written record there referred to in relation to inspection, included those parts of documents shown to the examinee and on which he was questioned.  In that regard, the approach I took was consistent with the approach taken by Campbell J in Winterbottom; Re Eurostar Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2003] NSWSC 633.  I can accept that there may be arguments to the contrary but from a purposive point of view, being able to inspect the documents in respect of which questions were asked is a practice which accords with the purpose of subs (14A) CA and I might add, commonsense. 

8                     There is no doubt that if the examinee had requested the Registry of the Court to permit him to examine the pages of the copies on which he was questioned, that the Registry would have done so, as they will do so now, when the examinee complies with the orders that have been made.

9                     It was for the reason that it was always open and will be open for the examinee to examine the pages of the documents on which he was examined, that it was unnecessary to accede to the examinee’s request that the plaintiff itself must make copies from the Court file of those documents on which the examinee was questioned and supply those to the examinee together with the transcript. 

10                  I have also been asked to review the costs order (par 3), although primarily on the basis of the foreshadowed success of the review of the authentication order (par 2).  As I do not propose to amend the authentication order, it follows that I will not amend the costs order.  While I did not accept all of the plaintiff’s arguments, it is clear that it has had substantive success and there is no reason why costs should not follow the event.  If costs cannot be agreed, I now indicate in these reasons that there should be modest provision in favour of the plaintiff on taxation for the supplementary argument pertaining to the examinee’s request that the orders of 22 April 2008 be varied. 

Associate:

Dated:         29 April 2008