FEDERAL COURT OF AUSTRALIA

ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No. 11) [2012] FCA 40

THE COURT ORDERS THAT:

1.    Direction no 3 made by the Court on 13 May 2011 in these proceedings be vacated.

2.    The First Plaintiffs/Applicants (hereafter in these Orders referred to as the liquidators) be released from the undertaking to the Court referred to in direction no 3 made by the Court on 13 May 2011 in these proceedings.

3.    The persons specified in Schedule 2 to the liquidators’ interlocutory process filed on 28 November 2011, namely John Walker, Hugh McLernon, Clive Bowman and Ewen McNee, be released from their respective undertakings arising from direction no 3 made by the Court on 13 May 2011 in these proceedings.

4.    The liquidators are justified, upon terms as to confidentiality in the terms of Schedule 3 attached to the liquidators’ interlocutory process, in providing to IMF (Australia) Ltd copies of documents that have been or are produced to the Court or provided to the liquidators or to their solicitors or counsel in relation to the public examinations in proceedings NSD 1257 of 2009.

5.    The liquidators’ costs and expenses of the liquidators’ interlocutory process be costs and expenses of the liquidation of the Second Plaintiffs.

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

THE COURT ORDERS THAT:

1.    Orders 1 and 2 made by the Court on 30 March 2010 in these proceedings be vacated.

2.    The First Plaintiffs/Applicants on the First Interlocutory Process (hereafter in these Orders referred to as the liquidators) be released from the undertaking to the Court referred to in order 1 made by the Court on 30 March 2010 in these proceedings.

3.    The persons specified in Schedule 2 to the First Interlocutory Process, namely John Walker, Hugh McLernon, Clive Bowman and Ewen McNee, be released from their respective undertakings arising from order 2 made by the Court on 30 March 2010 in these proceedings.

4.    The liquidators are justified, upon terms as to confidentiality in the terms of Schedule 3 attached to the First Interlocutory Process, in providing to IMF (Australia) Ltd copies of documents that have been or are produced to the Court or provided to the liquidators or to their solicitors or counsel in relation to the public examinations in these proceedings.

5.    The liquidators’ costs and expenses of the First Interlocutory Process be costs and expenses of the liquidation of A.B.C. Learning Centres Limited (In liquidation) (Receivers & Managers Appointed) ACN 079 736 664 (now known as ZYX Learning Centres Limited) and the companies listed in Schedule 1.

6.    Paragraph 1 of Schedule 2 of the orders made by this Court on 8 July 2011 in proceedings NSD 1257 of 2009 be set aside.

7.    Within 21 days, the parties formulate a precise form of order to accord with the findings of the Court in relation to the Second Interlocutory Process concerning the documents to be produced under Paragraph 2 of Schedule 2 to the 8 July 2011 orders.

8.    Each party pay their own costs of and incidental to the Second Interlocutory Process. The liquidators’ costs and expenses of the Second Interlocutory Process be costs and expenses of the liquidation of A.B.C. Learning Centres Limited (In liquidation) (Receivers & Managers Appointed) ACN 079 736 664 (now known as ZYX Learning Centres Limited) and the companies listed in Schedule 1.

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

REASONS FOR JUDGMENT

1    Before the Court are two applications relating to production of documents. The first is an application by Peter Walker and Gregory Moloney (‘the liquidators’) in their capacity as the liquidators of ABC Learning Centres Limited (in liquidation), now known as ZYX Learning Centres Limited and other associated companies (‘the ABC Learning Group’). The associated companies are set out in Schedule 1 to this judgment. For convenience ABC Learning Centres Limited (in liquidation) will be referred to as ABC Learning. The liquidators’ application seeks orders to release the liquidators from an undertaking previously given to the Court not to provide certain documents produced during public examinations to a litigation funder, IMF (Australia) Ltd (‘IMF’). Counsel for IMF has made submissions in support of the liquidators’ application.

2    The second application is brought by the Commonwealth Bank of Australia (‘the CBA’) on behalf of itself and a syndicate of seven other banks (‘the banks’) seeking to set aside certain orders for production or alternatively, to be excused from further production.

3    For convenience the first application will be referred to as ‘the liquidators’ application’ and the second will be referred to as ‘the banks’ application’.

BACKGROUND

4    Prior to December 2007 the banks lent approximately $1.3 billion without security to ABC Learning pursuant to a syndicate facility agreement which was then operating in Australia, the United States of America and the United Kingdom.

5    Early in 2008 ABC Learning determined that it wished to sell 60% of its business in the United States to Morgan Stanley Private Equity. However as such sale would have constituted a breach of the facility agreement, ABC Learning sought the consent of the banks. Approval was given by the banks in May 2008 subject to conditions. One of the conditions required ABC Learning to give a fixed and floating charge (‘the charge’) in favour of the banks over the assets of ABC Learning. On 25 June 2008 ABC Learning executed such charge.

6    On 6 November 2008 Peter Walker and Gregory Moloney were appointed as administrators of ABC Learning. On 2 June 2010 the creditors of ABC Learning passed a resolution to the effect that it was insolvent and appointed the administrators as joint liquidators of ABC Learning. For convenience despite their previous role Messrs Walker and Moloney will be referred to as the liquidators throughout this judgment.

7    The question which will arise for determination if the principal litigation proceeds is whether the charge given by ABC Learning to the banks constitutes a voidable transaction under s 588FE(2)(b) of the Corporations Act 2001 (Cth) (‘the Act’) as being an ‘uncommercial transaction’ pursuant to s 588FE(2B)(a)(i) of the Act or an ‘unfair preference’ within s 588FE(2B)(a)(ii); or is otherwise an unfair preference within the meaning of s 588FC of the Act.

8    On 22 October 2009 in proceedings NSD 1846 of 2008 Emmett J made an order pursuant to s 447D of the Act that the liquidators were justified in entering into a litigation funding agreement with IMF in relation to the funding of proposed public examinations.

9    Order 2 of such orders provided:

Pursuant to Section 447D of the Act, the First Plaintiffs/Applicants are justified, upon appropriate terms as to confidentiality, in providing access to IMF (Australia) Ltd of documents that are in the possession of the First Plaintiffs/Applicants and/or the Second Plaintiffs and to documents that are produced to the Court or the First Plaintiffs/Applicants or provided to counsel in relation to such public examinations.

10    On 6 November 2009 the liquidators commenced separate proceedings (NSD 1257 of 2009) seeking public examinations of a variety of persons. In November 2009 the liquidators obtained orders for production of documents pursuant to s 597(9) of the Act and under O 33 r 13(1) of the extant Federal Court Rules 1979 (‘the Rules’).

11    In late 2009 and early 2010, in order to investigate the circumstances surrounding the grant of the charge the liquidators conducted examinations pursuant to s 596A of the Act of certain officers of ABC Learning, creditors and two bank officers.

12    On 30 March 2010 Emmett J made consent orders in proceedings NSD 1257 of 2009 following negotiations between the liquidators and the banks. Order 1 thereof noted that notwithstanding order 2 made on 22 October 2009 in proceedings NSD 1846 of 2008 the liquidators undertook not to provide IMF with access to documents produced by the banks pursuant to an ex parte order made by Registrar Hannigan entered on 30 November 2009 otherwise than in accordance with order 2 then made by Emmett J.

13    Order 2 of the orders made on 30 March 2010 provided:

Where the whole or part of a document produced to the Court by the First Applicant or the Second Applicant is put to an examinee in the course of or during the examinations, pursuant to section 596F(1)(e) of the Corporations Act 2001, those persons employed by IMF (Australia) Limited named in the undertaking contained in Schedule 1 to these orders are granted access to the whole of such documents upon giving an undertaking in the form contained in Schedule 1 to these orders to the Court, the First Applicant and the Second Applicant.

14    Schedule 1 to the orders of 30 March 2010 comprises the Confidentiality Undertaking, and clause 4 thereof relevantly provided:

The Confidential Documents, and any part of them, and any information contained in them, may be disclosed by me [i.e. the liquidators] to:

(a)    the Federal Court of Australia and Judges and Registrars of the Federal Court of Australia and if required by any order of any Court, pursuant to any such order;

(b)     any employee or partner of Ferrier Hodgson who is involved in the administration or liquidation of ABC Learning Centres Limited (Administrators Appointed) (Receivers and Managers Appointed) and related companies (the “Administration”);

(c)    any solicitor who is a member of or employed by Kemp Strang [extant solicitors for the liquidators], solicitors and any counsel, who act in connection with the Administration; and

(d)    any employee of IMF (Australia) Ltd (“IMF”) identified in Item 3 of Schedule A who has signed an undertaking in this form which has been served on the Producer.

15    On 13 May 2011 in proceedings NSD 1846 of 2008 Emmett J made various orders and directions. Direction 1 thereof provided that, pursuant to s 479 and s 511 of the Act, the liquidators were justified in entering into a funding agreement with IMF in relation to the proposed public examinations as set out in a confidential exhibit relating to a ‘Funding Agreement’. Relevantly direction 3 of such orders provided as follows:

Notwithstanding any terms of the Funding Agreement to the contrary, the First Plaintiffs/Applicants [i.e. the liquidators] undertake not to provide IMF with access to documents produced by the following parties pursuant to the orders of this Court entered on 30 November 2009 or 20 April 2011 in proceedings NSD 1257 of 2009:

[Thereafter, the banks are listed]

except in so far as the whole or part of a document produced to the Court by any of the Banks has been put to an examinee in the course of or during the examinations conducted by the First Plaintiffs/Applicants pursuant to section 596B of the Corporations Act 2001, in which event that document may be disclosed to those persons employed by IMF named in the undertaking in the terms attached to these orders (as shown to the Court) upon the giving of an undertaking by each of these persons in the terms attached to these orders (as shown to the Court) to the Court, and to the Bank that produced the relevant document.

16    The confidentiality regime which presently exists provides that the liquidators are not to give IMF access to any documents produced by the banks unless: (a) the documents had been used in the course of the public examinations; and (b) the relevant employee of IMF has signed a confidentiality undertaking.

CURRENT LIQUIDATORS’ APPLICATION

17    By their Amended Interlocutory Process (‘the amended interlocutory process’) filed in Court on 28 November 2011 in proceedings NSD 1846 of 2008 and NSD 1257 of 2009 the liquidators make an application to vary the existing confidentiality regime to enable them to provide all documents produced by the banks relating to the public examinations, irrespective of whether such documents were actually used in the examinations, to employees of IMF subject to a new confidentiality undertaking in similar but extended terms to the existing undertaking. Accordingly in NSD 1257 of 2009 the liquidators seek the following orders:

1.    Orders No 1 and 2 made by Emmett J on 30 March 2010 in these proceedings be vacated;

2.    The plaintiffs/applicants [i.e. the liquidators] be released from the undertaking to the Court referred to in order no. 1 made on 30 March 2010 in these proceedings.

3.    The persons specified in Schedule 2 be released from their respective undertakings arising from order no. 2 made by the Court on 30 March 2010 in these proceedings.

4.    Pursuant to sections 479(3), 511 and 596F(1)(e) of the Act, the [liquidators] are justified, upon terms as to confidentiality in the terms of Schedule 3 attached hereto, in providing to IMF (Australia) Ltd copies of documents that have been or are produced to the Court or provided to the [liquidators] or to their solicitors or counsel in relation to the public examinations in these proceedings.

5.    Pursuant to sections 479, 511 and 556 of the Act, an order that the [liquidators’] costs and expenses of the application be costs and expenses of the liquidation of the Second Plaintiffs.

18    Similarly, the liquidators seek in NSD 1846 of 2008:

1.    Direction no. 3 made by the Court on 13 May 2011 in these proceedings be vacated.

2.    The First Plaintiffs/Applicants [i.e. the liquidators] be released from the undertaking to the Court referred to in direction no. 3 made by the Court on 13 May 2011 in these proceedings.

3.    The persons specified in Schedule 2 [i.e. relevant employees of IMF] be released from their respective undertakings arising from direction no. 3 made by the Court on 13 May 2011 in these proceedings.

4.    Pursuant to sections 479(3), 511 and 596F(1)(e) of the Act, the [liquidators] are justified, upon terms as to confidentiality in the terms of Schedule 3 attached hereto, in providing to IMF (Australia) Ltd copies of documents that have been or are produced to the Court or provided to the [liquidators] or to their solicitors or counsel in relation to the public examinations in proceedings NSD 1257 of 2009.

5.    Pursuant to sections 479, 511 and 556 of the Act, an order that the [liquidators’] costs and expenses of the application be costs and expenses of the liquidation of the Second Plaintiffs.

19    The four employees of IMF who are listed in Schedule 2 to the amended interlocutory process are John Walker, Hugh McLernon, Clive Bowman and Ewen McNee.

20    Order 2 of the orders made by Emmett J on 30 March 2010 is set out at [13] above. Direction 3 of the orders made on 13 May 2011 in NSD 1846 of 2008 is set out at [15] above.

21    Schedule 3 to the amended interlocutory process contains the proposed confidentiality undertaking. Such undertaking seeks to expand the persons who are authorised to view the documents to the following:

(a)    the Federal Court of Australia and Judges, Registrars and employees of the Federal Court of Australia;

(b)    if required by any order of any Court, the person/s to whom I [i.e. the liquidator] am ordered or permitted to disclose pursuant to any such order;

(c)    any employee or partner of Ferrier Hodgson who is involved in the liquidation of ABC Learning Centres Limited (In Liquidation) (Receivers and Managers Appointed) (now known as ZYX Learning Centres Limited) and the companies and/or trusts identified in Schedule B (the “Liquidation”);

(d)     any solicitor who is a member of or employed by Addisons, solicitors and any counsel, who act in connection with the Liquidation;

(e)     any employee of IMF (Australia) Ltd (“IMF”) identified in Item 3 of Schedule A [i.e. the employees of IMF set out in [19] above] who has signed an undertaking in this form which has been served on the Producer;

(f)     any solicitor of Counsel engaged by IMF (the “Legal Representatives”); or

(g)     any solicitor employed or engaged by or employee of the Legal Representatives.

22    Paragraph 5 of the proposed undertaking states:

I will ensure that any document created by me or given to me recording or containing information contained in the Confidential Document given to me, save for any document that:

(a)    contains legal advice provided to IMF; and/or

(b)    is created by IMF for the purpose of seeking legal advice; and/or

(c)    is created by IMF in connection with or in contemplation of:

i.    The Examinations referred to in item 1 of Schedule A, or

ii.    Actual or anticipated legal proceedings referred to in paragraph (c) of Item 2 of Schedule A,

is returned to Addisons [current solicitors for the liquidators] once all litigation of the Liquidation or its controllers funded by IMF is concluded and IMF has determined not to fund any further litigation of the Liquidation or its controllers.

23    The proposed purposes as set out in Schedule A to the new undertaking include ‘whether IMF wishes to fund any legal proceedings by the insolvency practitioner [the liquidators]…’ and ‘whether IMF wishes to continue to fund the examinations’.

24    If orders are made as sought, all documents produced by the banks for the purpose of the public examinations could be provided to IMF for the purposes outlined in Schedule A to the proposed undertaking.

LIQUIDATORS’ SUBMISSIONS

25    The liquidators submit that without funding from IMF it is unlikely that a successful challenge to the charge can be mounted and that it is in the best interests of ABC Learning and its creditors that the variation be allowed. The liquidators also submit that the involvement of IMF is fundamental to further investigation of the charge, since without funding they have no funds with which to carry out further investigations and examinations because the banks have control of all funds of ABC Learning.

26    The liquidators rely upon the observations of Santow J in New Cap Reinsurance Corporation Holdings Ltd [2001] NSWSC 835 (New Cap) in which his Honour considered whether a creditor (or a party claiming to be a creditor) of a company in liquidation should be allowed access to documents produced during a liquidator’s compulsory examination to assist that creditor in proceedings against the company or associated defendants. Santow J held that s 596F(1)(e) of the Act conferred on a court a discretionary power enabling it to give access to documents which were produced for the purpose of examination but which were not actually used in the examination.

27    The liquidators also rely upon the observations of Campbell J in Re Eurostar Pty Ltd (in liq) [2003] NSWSC 633 (Eurostar) in which Campbell J followed New Cap.

BANKS’ SUBMISSIONS

28    The banks oppose any variation as proposed by the liquidators. The banks provide three principal reasons in support of their claims that the liquidators’ application should be dismissed. First, that the liquidators are bound by an agreement made between them and the banks relating to disclosure; secondly that the liquidators seek, in effect, general disclosure of the banks’ records and thirdly, that confidentiality of the banks’ records cannot be safeguarded.

29    The banks submit that the undertakings provided by the liquidators and the four nominated IMF employees to the Court represent a compromise between the banks and the liquidators and that no basis exists to set aside or vary such compromise.

30    The banks rely upon the fact that on 1 March 2010 they filed an interlocutory process in each proceeding seeking orders that the liquidators be prohibited from providing IMF with access to documents produced by them, and that such proceedings were resolved by consent orders made by Emmett J in NSD 1257 of 2009 on 30 March 2010. The banks submit that the agreement is binding upon the parties to that arrangement.

31    The banks also submit the issue of access to IMF of documents produced by the banks in response to orders made by the Court on 20 April 2011 was also resolved by the banks, the liquidators, and IMF, and that such agreement is the same as that referred to in order 3 made by Emmett J on 13 May 2011 in proceeding NSD 1846 of 2008. The banks submit that only in exceptional circumstances would the Court interfere with such arrangements and that the current application does not disclose any exceptional circumstances.

32    Further, in respect of the four IMF employees and the parties’ undertakings, the banks submit that the undertakings remain binding upon such persons and even if they were released by order of the Court from the undertakings provided by them, such order would not release them from the inter partes agreement.

33    The evidence in support of the banks contention is largely contained in the affidavits of Katherine Allison Merrick, a partner in the firm of Henry Davis York, solicitors for the banks. Her affidavit sworn on 5 October 2011 sets out each item of correspondence which passed between the parties and culminated in the arrangements which became the basis of the orders made on 30 March 2010 by Emmett J.

34    On 20 April 2011 orders were obtained before Registrar Hannigan requiring the banks to produce documents to the liquidators. Ms Merrick and the liquidators engaged in correspondence to 12 May 2011 which resulted in orders being made on 13 May 2011 by Emmett J. Those orders were made in similar terms to those made by his Honour on 30 March 2010.

35    Ms Merrick deposed that in May 2011, as a result of the orders, approximately 10,000 documents comprising 60,000 pages were produced and that some public examinations were conducted over two days in April 2010. These examinations and further public examinations of 15 officers took place in July 2011.

36    On 8 July 2011 the liquidators obtained further orders of production addressed to each of the banks (‘the July 2011 Orders’). However the banks then expressed concern with respect to the scope of the production sought by the July 2011 Orders on the basis that the relevant documents were regarded by the banks as confidential and commercially sensitive. Those orders required production of the banks’ policies and procedures which the banks submit would not ordinarily be revealed to their clients, third parties or other banks.

37    The banks and the liquidators negotiated an agreement for producing a limited range of documents which the parties identified as the ‘Definitions Documents’, and the Definitions Documents were produced to the Court by the banks (with the exception of one bank). Access orders to those documents were made by District Registrar Wall on 24 August 2011 by consent. Access to such documents was, by virtue of order 1 thereof, limited to eight persons who were nominated in that order; namely the liquidators, two employees of Ferrier Hodgson, and solicitors and counsel for the banks and the liquidators.

38    Order 5 of such orders provided:

For the avoidance of doubt, unless otherwise ordered the documents are not to be shown to IMF (Australia) Ltd or any of its employees.

39    Correspondence from the liquidators indicated satisfaction with the production of the Definitions Documents but indicating that records were still required relating to ‘manual/procedures et al’ of two banks (BankWest and Mizuho).

40    The banks submit that other than documents which explain the meanings of the ratings applied to ABC Learning during the relevant period, there is no relevance of such documents to the questions involved in the proceedings relating to the examinable affairs of ABC Learning.

41    Ms Merrick’s affidavit sworn on 5 October 2011 states the banks’ concerns which may be summarised as follows:

(a)    The substantial scope of documentation already produced especially in the absence of any control method for the bank to monitor compliance;

(b)    The commercially sensitive nature of the banks’ records; and

(c)    The risk that the documentation produced under compulsion will be used for purposes other than that for which it was produced.

42    With regard to the above item (c), the matters causing concern to the banks were the commercial interests of IMF as the funder of a potential shareholder action against the banks; the fact that the funding agreement contemplates IMF using the documents produced on the examination for purposes going beyond whether to continue to provide funding; and the fact that IMF carries the business of investing in potential litigation for reward.

CONSIDERATION

Are the undertakings binding?

43    The banks have referred to numerous authorities in support of the principle that parties should be bound by undertakings given during the course of litigation: see for example Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 599-601 per McPherson SPJ. Such decision was not followed in subsequent proceedings in the Queensland Court of Appeal: see Alford v Ebbage [2003] 1 Qd R 343 at [61] and [69]-[70]. However more recently Logan J in Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041 followed McPherson SPJ at [30]-[34]. The Court observes that Logan J’s decision makes no reference to the decision in Alford v Ebbage.

44    In Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 the High Court of Australia considered the status of an undertaking provided to the Federal Court of Australia and whether such undertaking should be released or varied. The Court referred to the need for appellant courts to exercise particular caution in reviewing decisions of lower courts and observed that it would be unwise to write down any ‘rigid and exhaustive criteria’ for altering existing orders. Their Honours (Gibbs CJ, Aickin, Wilson and Brennan JJ) referred at 177 to the observations of Sir Frederick Jordan in Re The Will of F. B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 as follows:

…I am of the opinion that,…there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

45    In Adam P Brown Male Fashions Proprietary Limited the High Court found that the circumstances before it justified a release of a party from the undertaking provided to the Court. However in the present circumstances the undertakings relate solely to the use of documents produced by the banks.

46    On 5 July 2011 Mr Carlos Jaramillo, a former solicitor for IMF wrote to the liquidators’ solicitors concerning the confidentiality undertakings to be provided. Such letter recites the fact that when the CBA filed its Interlocutory Process on 1 March 2010 seeking prohibition upon disclosure of the documents produced by the CBA to the Court, IMF agreed to provide a confidentiality undertaking to the Court and to the CBA ‘in order to deal with CBA’s objection expeditiously’. As a consequence of the negotiated compromise, documents were provided.

47    Such undertaking had been encapsulated in the orders of Emmett J made on 30 March 2010. The terms of the communication do not suggest that there was any permanency in such arrangement, nor that IMF (and the liquidators) would be permanently bound by such arrangement.

48    An undertaking to the Court should be maintained unless there are very sound reasons for altering or discharging it. The present proceedings involve a practical resolution by all parties of an interlocutory application to avoid what would otherwise have been a contested hearing. But this circumstance does not lead to the consequence that the arrangement is permanent. Circumstances might arise where such an undertaking may justify the Court considering that a variation is desirable.

49    In Crest Homes Plc v Marks [1987] AC 829 Lord Oliver observed (at 860 B-D) that an undertaking not to use documents could be modified where ‘special circumstances’ existed. The Court observes that similar considerations arose in the matter of QPSX Limited v Ericsson Australia Ltd (No 5) [2007] FCA 244 from [13]-[20], where documents were sought by a party for use by IMF for possible litigation.

50    French J in QPSX referred at [16] to Northrop J in National Mutual Holdings Pty Ltd v Sentry Corporation [1990] FCA 245 at 17; and to the observations of Lockhart J in Sweetman v Australian Thoroughbred Finance Pty Ltd [1992] FCA 1059 and of Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576. These decisions considered whether ‘special circumstances’ existed to justify a release or modification of an undertaking. French J also referred at [17] to the decision of Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 223-225 in which Wilcox J, adopting the approaches of Burchett and Lockhart JJ in Sweetman and Holpitt said at 225:

For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present.

51    As part of their statutory duties the liquidators are required to investigate the affairs of ABC Learning. In such investigation the question arises whether the charge might be voidable. Such enquiry can only be effective provided funding is available from IMF. IMF will not provide funding unless it is satisfied that there are justifiable reasons for doing so. This can only be determined by IMF assessing the documents. For this reason the Court does not consider that the banks’ interests in the continuation of the undertaking outweighs the broader interests of enabling the liquidators to fulfil their statutory duties.

General disclosure of the banks’ records

52    In QPSX French J (as he then was) considered numerous authorities relating to the use of documents obtained by court process. His Honour referred at [13]-[15] to the basic principle that documents obtained pursuant to court orders should not be copied or used for any collateral or other purpose; and for such use to be made of documents constitutes a breach of the implied undertaking upon the use of such documents and also constitutes a contempt of Court: see Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304 per Diplock LJ. The rationale is also explained by Keith LJ (at 308) who referred to the fact that discovery constitutes ‘a very serious invasion of the privacy and confidentiality of a litigant’s affairs’ and that ‘the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done’.

53    French J in QPSX at [19] referred to Cadence Asset Management Pty Ltd v Concept Sports Ltd [2006] FCA 711 in which Finkelstein J at [6] and [7] concluded that an implied undertaking did not operate so as to prevent ‘absolutely’ a party giving discovered documents to a non-party. At [19] French J in QPSX said:

I note that Finkelstein J adverted to a possible limitation that disclosure to the litigation funder might go no further than was needed for it to assess the merits of a case.

54    French J at [20] observed that IMF was not a legal practitioner; that it was in the business of financing litigation for commercial purposes; and that there was a risk that information derived by it could be placed on a database and used for other purposes or in other proceedings. Such risk was one which clearly influenced his Honour when he found at [20]:

However, the generic risk associated with the wider disclosure of the discovered documents is something which the party discovering those documents is entitled to take into account and be concerned about. It is entitled to seek specificity as to the documents to be disclosed and the purpose for which they are to be disclosed.

55    In the proceedings before French J there was no element involving a liquidator; rather the documents were sought by IMF to assist it in its assessment whether litigation should be instituted for the benefit of third parties. Accordingly no issue arose concerning the liquidators’ duty to examine the affairs of a company, as arises in the present proceedings.

56    The agreement upon which the banks rely represented a convenient and practical method of resolving the parties’ differences for protecting the confidentiality of their documents. IMF was intimately involved in this process and participated in the making of the application for the orders for discovery and the consequential arrangements for confidentiality. The Court is satisfied that unless funding is made available by IMF, there will be no funds available to enable a determination whether the charge could be set aside for the benefit of creditors. This consideration distinguishes the conclusion of French J in QPSX from the present circumstances.

57    As to the second reason relied upon by the banks, the Court refers to QPSX at [26]. A consideration which appeared to influence French J’s decision was ‘the general terms’ in which the application was made. His Honour continued at [26]:

I do not think a general licence to disclose documents to IMF on the broad basis that it has a legitimate interest in the proceedings is a sufficient basis for such disclosure in light of the considerations to which I have earlier referred.

58    In Kirby v Centro Properties Limited [2009] FCA 695 the Court considered whether certain documents should be produced to an applicant on discovery. Ryan J at [42] expressly referred to the concerns expressed by French J in QPSX in respect of the provision of documents to IMF. However Ryan J permitted documents to be produced to IMF subject to an undertaking.

59    In Campbells Cash and Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386, Callinan and Heydon JJ at [277] strongly criticised the conduct of litigation funders who seek, not to assist the litigation, but rather to ‘intermeddle’ to obtain a profit for themselves.

60    No such consideration applies in the present circumstances. The documents produced in these proceedings are not required for a general but rather a very specific purpose, namely, to determine whether the charges are voidable. This constitutes a significant distinction to the generalised disclosure which was considered by French J in QPSX.

61    In Hearne v Street (2008) 235 CLR 125 the High Court considered the operation of the ‘implied undertaking’ referred to in Harman. At [109] the majority (Hayne, Heydon and Crennan JJ) found that an implied undertaking given by a party who receives documents or information from another party in litigation pursuant to litigious purposes also binds others to whom documents and information are given. Their Honours said:

For example, expert witnesses, who are not parties, commonly receive such documents and information and are bound by the obligation. It is likely that, in the future, documents and information will be provided to persons funding litigation, who will likewise be bound by the obligation.

62    Based upon such rationale any member of IMF, its servants or agents to whom the documents may be disclosed, are equally bound. The observations of the High Court serve to remind that express recognition is now given to the role of litigation funders. Provided the constraints referred to in Hearne at [109] are observed by any person who might acquire the documents so produced, then there could be no fundamental objection to their production.

63    The Court considers that the critical position occupied by IMF in these proceedings, as the only possible facilitators of the inquiries being made by the liquidators, distinguishes it from the authorities relied upon by the banks. This is not a matter in respect of which IMF seeks to ‘intermeddle’ (see Campbells Cash and Carry Pty Limited at [277]).

64    When Emmett J made the orders on 22 October 2009 his Honour recorded his reasons for making the orders in a judgment: see ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No. 9) [2009] FCA 1462. At [25] of his Honour’s reasons, his Honour relevantly said:

So long as the material provided to IMF in connection with the funding agreement is kept confidential, so as to ensure that there is no harmful consequence for the Administrators or the ABC Group by its disclosure, I consider that the Administrators will be justified in providing the access that IMF requires under the proposed agreement. Appropriate confidentiality deeds would be entered into between IMF and the Administrators, and the ABC Group in that regard.

65    Subsequently, the funding agreement between the liquidators and IMF was entered into on 29 October 2009.

66    The Court is satisfied that the circumstances warrant a variation to the undertaking given by the liquidators to the Court. If the liquidators are relieved of their obligations of confidentiality and if they disclose documents to IMF, such disclosure would only be on the basis that IMF provides an undertaking to ensure confidentiality. In addition the implied undertaking referred to in the above authorities to the effect that any third party is bound by confidentiality considerations where their source of knowledge arises from documents produced as a result of court procedures applies: see Harman.

Confidentiality Safeguards

67    The banks submit that the Court could have no confidence that the confidentiality regime proposed by the liquidators will be effective.

68    Under the proposal the liquidators would be at liberty to provide all of the documents produced by the banks to the Court to the IMF employees upon them signing an undertaking and serving it upon the banks. The documents are sought to be used by the four IMF employees for the following purposes, namely to consider whether IMF wishes to continue to fund the examinations; to consider the advice of the liquidators’ lawyers; to consider whether IMF wishes to fund any legal proceedings by the liquidators; and to seek legal, financial or accounting advice in relation to any of the above purposes.

69    The banks note that the purposes do not include the shareholders’ action against the ABC Learning Group, nor any existing proceedings against the banks or any future proceedings against the banks that are not brought by the liquidators or companies in liquidation.

70    In amplification of their concerns the banks draw attention to the following facts, namely that IMF is the largest litigation funder in Australia and that its website refers to the status of an existing shareholder action against ABC Learning which indicates that success of such recovery proceedings is largely dependant upon having the charge declared void and the roles of Mr McLernon, Mr Walker and Mr Beaumont. Mr Walker is an Executive Director and has a material involvement in case selection and management for IMF. Mr Beaumont is also an executive director and is Director of Operations and is responsible for all case management activity. Mr McLernon is stated to be responsible for overall management and operations of IMF and is the Managing Director and leader of the Case Selection Committee.

71    The financial returns for the year ended 30 June 2011 of IMF record that each of the above named people has substantial shareholdings in IMF and letters have been sent by IMF to shareholders inviting them to join in an action funded by IMF against ABC Learning.

72    The banks submit that the ability of the four IMF employees to quarantine the uses to which the banks’ documents may be put must be assessed with regard to the ability of IMF to protect such information. The banks refer to the decision of Jacobson J in Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) (2007) 160 FCR 35 at [308]-[321] in which his Honour referred to the arrangements which would normally be regarded as acceptable to protect the use of such information, namely physical separation of the documents from different departments; an education program; careful and strict procedures to ensure that the ‘Chinese walls’ were not breached; monitoring by compliance of officers and disciplinary sanctions for breaches.

73    The banks submit that there is no evidence of any such safeguards, and that IMF bears the onus of satisfying the Court that effective means have been taken to ensure that disclosure of the banks’ confidential information cannot occur. The banks rely on the decision of the House of Lords in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 at 237H to 238A in which Millett LJ referred to the measures which were required to protect information in such circumstances.

74    The banks submit that under the proposed confidentiality regime the liquidators and the four IMF employees could provide the banks’ documents to unidentified persons for the purpose of seeking legal, financial or accounting advice; that there is no express requirement for such persons to only use the information contained in the documents for the restricted purposes; nor is there any requirement that those persons not provide the documents to other persons, or otherwise retain the documents. In summary the banks submit that the Court could not be satisfied that the measures proposed provide a satisfactory confidentiality regime.

FINDINGS

75    In New Cap Santow J took into consideration (at [24]) the fact that there was a ‘reasonable prospect of benefit to creditors, though no certainty’ which justified access to the documents sought to be produced. His Honour referred (at [23]) to the low threshold required and at [26] said:

It will be apparent that the benefit in question could be indirect or prospective as indeed may be the case here, so long as it is not so remote as to be beyond the reasonable bounds of possibility.

76    Having considered numerous authorities and the Explanatory Memorandum to the Corporate Law Reform Act 1992 (Cth) (at [27]-[38]) Santow J in New Cap referred to documents which were used in the compulsory examination and those which were not used but which were nevertheless produced. His Honour said at [39]:

I am satisfied that there are a number of sources of power available to the liquidator to do that which he does not oppose doing, namely to make available the documents which were utilised in the examination either by directly being marked for identification or as other ways being produced for the examination. I see no sensible distinction being drawn between the two categories of document. The documents not marked for identification were still capable of informing the examination and influencing the questions asked. Indeed the liquidator's submissions appear to favour that access. Thus I would include in any access all documents produced, in the absence of any evidence from those opposing access that a document was produced which was entirely extraneous to any possible purpose of the original examination.

77    The observations of Santow J were adopted by Campbell J in Eurostar at [10]. In those proceedings the receiver of the company sought leave of the Court to disclose to third parties documents produced by various people as part of examinations. At [13] Campbell J noted:

… successful litigation by the Saville interests might result in a larger distribution being made from the assets to the creditors in the general body of creditors.

78    His Honour observed the difference between documents obtained by virtue of the provisions in Part 5.9 of the Act compared to those obtained by way of subpoena. His Honour referred at [14] to his Honour’s findings in Wellness Pty Ltd v Hamilton-Bond [2002] NSWSC 1259 at [8]:

The test which the Court uses in deciding whether it will grant permission for the documents to be used in some other way, when (as here) the documents have not been read out in open court, is that the release of the documents will not be allowed save in special circumstances and when such use will not occasion injustice to the person who produced the documents under subpoena.

79    At [24] Campbell J in Eurostar referred to the fact that s 516F(1)(e) of the Act confers on the Court a discretionary power enabling it to give access to, inter alia, documents which were produced under compulsory process for the purpose of the examination but which were not actually used.

80    In Re New Tel Ltd (in liq) (2008) 167 FCR 435 McKerracher J considered the scope of s 597 of the Act in respect of an examinee who refused to sign a written record of examination, subject to production of the documents which had been put to him during the examination. His Honour held that the pages of documents upon which an examinee is questioned form part of the written record of examination for the purpose of s 597(14A) of the Act. Significantly at [20] his Honour referred to the observations of Santow J in New Cap and also the decision of Campbell J in Eurostar. McKerracher J said at [20] and [21]:

20. Santow J at [42] in New Cap [2001] NSWSC 835 observed that it would be straining language unduly to include in the expression ‘written record’ in subs (13), (14) and (15A) of s 597 of the CA documents produced for the examination but not referred to in it. From this, the examinee argues that conversely, if documents have been referred to in the examination then they are part of the written record. That view appears to have been taken as “common ground” in Eurostar [2003] NSWSC 633. On the other hand, there can be little doubt that documents referred to are also catered for by the broader expression “records of the examination” in s 596F of the CA, just as that expression caters for documents produced but not referred to.

21. In Eurostar [2003] NSWSC 633 Campbell J was considering an application by a receiver for leave to use and disclose to third parties, documents produced to the court by persons pursuant to Pt 5.9 of the CA. After referring to the legislative intention at [11]-[14], his Honour said (at [23]):

As Santow J pointed out in New Cap, there is a distinction between the “written record” referred to in s 597 (14A), and the “records of the examination” referred to in s 596F(1)(e). The “written record” in s 597 (14A) can be inspected as of right by any creditor of the corporation. That includes, it is common ground, any documents which were marked for identification and shown to a witness in the course of the examination. Thus, there is no basis upon which the receiver could resist, even if he wanted to, a request by a creditor of the corporation to inspect that material.

81    The implied undertakings which will extend to any person to whom the documents are made available would operate so as to ensure that there is adequate protection provided to the banks. Further, with regard to the banks’ concern that the ‘Chinese walls’ would not be adequate, this objection is outweighed by other factors discussed hereunder. Whilst there is no evidence of the existence of such measures, the fact that the documents are being provided solely for the purpose of this litigation constitutes sufficient reason for the Court to conclude that the objection by the banks to production on this ground is not sustainable. The principles in Harman apply to any person who might inspect the produced documents. Further, the form of undertaking proposed imposes a significant obligation upon those persons who are authorised to inspect the banks’ records.

82    The Court is mindful of the banks’ submission that if orders as sought are made, the production of documents would be required which may contain confidential information. Nevertheless, such consideration does not outweigh the greater public interest in ensuring that the liquidators fulfil their statutory obligations, to make recovery for the interests of the creditors and shareholders of ABC Learning wherever that is practicable and to institute proceedings wherever a valid cause of action may exist. Any investigation against ABC Learning will only be made possible if funding is available for that purpose; and that funding will only be made available by permitting IMF to have access to documents produced by the banks.

83    The Court is satisfied that the proposed arrangements provide a satisfactory compromise between the liquidators’ and the banks’ competing interests. The banks’ concerns are met by the confidentiality regime proposed as well as by the implied undertaking resulting from the compulsory production of documents.

84    The Court acknowledges that counsel on behalf of IMF made extensive submissions in support of the liquidators’ application. The Court has considered such submissions but finds that it is unnecessary to refer to them as a result of the Court’s finding above.

85    With respect of the liquidators’ application the Court will make orders in both NSD 1846 of 2008 and NSD 1257 of 2009 as sought.

THE BANKS’ APPLICATION

86    By amended interlocutory application filed in proceedings No 1257 of 2009 the banks seek the following relevant orders:

1.    The Court’s orders for production addressed to the Applicants dated 8 July 2011 be set aside.

2.    Alternatively, paragraph 1 of Schedule 2 of the Court’s orders for production addressed to the Applicants dated 8 July 2011 be set aside.

3.    In the further alternative, the Court excuse the Applicants from producing any further documents in answer to the Court’s orders for production addressed to the Applicants dated 8 July 2011.

87    The banks rely upon the principle that a person affected by a court order obtained ex parte may apply for its discharge: see International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [134]. The banks emphasise that the July 2011 orders were made ex parte.

BANKS’ SUBMISSIONS

(a) Absence of any examination

88    The banks submit that O 33 r 13 of the Rules only supported an order for production of documents, relevantly, for the purpose of facilitating an examination of the person by the liquidators. Order 33 r 13 of the Rules relevantly provided:

Attendance and production

(1)     The Court may make orders for-

(a)    the attendance of any person for the purpose of being examined; or

(b)    the attendance of any person and production by him of any document or thing specified or described in the order.

(2)     An order under sub-rule (1) may be made for the attendance of any person before, and production by him to, the Court or any officer of the Court, examiner, or other person authorized to take evidence, on any trial, hearing or other occasion.

(3)     Sub-rules (1) and (2) apply whether or not the person for whose attendance the order is made has been required to attend by subpoena.

89    The banks submit that where no person is to be examined there is no basis for an order being made requiring it to produce documents. That is, O 33 r 13 of the Rules did not support an order for the production of documents where no examination is to take place.

90    In their supplementary submissions provided to the Court on 19 December 2011 the banks also submit that there was no connection between the documents sought and the examinations that had and were taking place. Accordingly based on the reasoning of Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1188 the banks submit that due to the lack of connection to the examinable affairs of ABC Learning the production orders should be set aside. This issue is more fully considered below at [94]-[114].

91    The liquidators submit that as at 8 July 2011 (the date when the July 2011 Orders were made) examinations of Mr Davies and Mr Cooke were scheduled to take place on 21 July 2011. Accordingly the liquidators submit that it is factually incorrect to submit that there was no examinations proposed and that the July 2011 orders were therefore made in a vacuum.

92    Both parties’ written supplementary submissions provided on 19 December 2011 and 22 December 2011 and the chronology provided by the liquidators demonstrate that at 8 July 2011 there were examinations that were not yet concluded. While the examinations of various bank officers were stood over generally with liberty to the liquidators to resume within 6 months, such a circumstances is sufficient to give ‘the examination summons a continuing relevance and utility’: see Barrett J in In the Matter of Kevin Jacobsen Pty Ltd [2011] NSWSC 1539 at [17].

93    The Court agrees with the liquidators’ submission that the examinations were continuing. However it must still be established that the documents sought in relation to the examination must relate to the ‘examinable affairs’ of the company.

(b) Examinable affairs of ABC Learning

94    The banks submit that the documents required for production do not relate to the examinable affairs of ABC Learning.

95    In addition the banks submit that their confidential interests prevail over any interest of the liquidators and rely upon the decision of McLelland J in Re BPTC Ltd (in liq) (1993) 29 NSWLR 708 at 711G. His Honour there stated that the only legitimate function of an examination under s 597 of the Act is to obtain evidence in relation to the affairs of the relevant corporation and ‘not as an independent function of such an examination’ (see McLelland J at 712A).

96    The banks refer to the evidence filed in support for the production of documents ordered by the July 2011 Orders. The banks submit that the liquidators’ reasons for requiring the production of documents, which are set out in the affidavit of Philip Maurice Stern sworn on 4 October 2011 at [13], do not include the facilitation of any examination under s 596B(1) of the Act. The banks submit that since no examination is pending, the liquidators have no legitimate interest in such documents.

97    Even if the above submissions are not accepted, the banks submit that the expressed reasons in claiming the access are stated to be: to clarify the meanings of the evidence of examinees; to understand the manner in which the banks ascribed credit ratings to companies within the ABC Learning Group; to assist the liquidators to instruct experts on banking practice; and to assist the liquidators to form an opinion as to the likelihood of the banks in successfully relying upon the good faith defence pursuant to s 588FG of the Act. The banks submit that in any event, the documents relating to the internal policies and procedures are unlikely to be helpful and are remote from any such question for determination.

98    The banks further submit that their interests arise from the following matters, namely:

(i)    documents already produced provide the best explanations of the risk assessments and credit ratings relevantly applied to the ABC Learning Group by the banks;

(ii)    retrieval, collation and production of documents to comply with the July 2011 Orders will be very time consuming and such imposition is either oppressive or disproportionate to any benefits which are likely to accrue;

(iii)    many documents recording the banks’ policies and procedures relating to their approaches to risk assessments and credit ratings are highly confidential and commercially sensitive. Some of such records record trade secrets;

(iv)    the liquidators intend to show such records to IMF; and

(v)    such conduct would be contrary to the banks’ interests since IMF has funded proceedings against the banks and the banks’ records may be used in subsequent proceedings against them by the liquidators.

99    Section 596B(1) of the Act refers to the examinable affairs of the corporation in question. Section 9 of the Act defines ‘examinable affairs’ and the definition is expanded by s 53 of such Act. The banks submit that O 33 r 13 of the Rules was intended to facilitate such an examination and accordingly only documents relating to the examinable affairs of the corporation in question can be compelled: see Re Bill Express Ltd (in liq) (2010) 238 FLR 329 at [22]-[26]. Further the requirements made by the order must not ‘exceed the legitimate requirements of a particular occasion’: see Re BPTC Ltd (in liq) at 711F-G per McLelland J.

100    Barrett J in Onefone Australia Pty Ltd concluded at [22]:

It is not enough to say that the examinations, of their nature, concern the “examinable affairs” of One.Tel and the documents also concern the “examinable affairs” of One.Tel. The court must be able to see that the particular examinations will be assisted or facilitated by the production of the particular documents.

101    Accordingly the banks submit that an order requiring production of documents which are not required for an examination is oppressive and made in excess of power: Re BPTC Ltd (in liq) (No 5) (1993) 10 ACSR 756 at 763 per Bryson J. The banks also submit that the documents sought by paragraph 1 of Schedule 2 of the July 2011 Orders are not confined to documents relating to the ABC Learning Group, but extend to documents relating to the banks’ general policies and procedures.

102    Further, paragraph 1 of Schedule 2 of the July 2011 Orders requires production of documents relating to the internal operations and activities of the banks which could not constitute examinable affairs of the ABC Learning Group. The banks rely upon the observations of Basten JA in Meteyard v Love (2005) 65 NSWLR 36 at [42] and [43] in which his Honour found that the ‘internal operations or activities of another person or corporation will not fall in the examinable affairs of the corporation simply because they have the potential to affect the value of the assets of the corporation.’

103    The liquidators submit that such documents are relevant by virtue of s 588FG of the Act which relevantly provides:

Transaction not voidable as against certain persons

(1)    A court is not to make under section 588FF an order materially prejudicing a right or interest of a person other than a party to the transaction if it is proved that:

(a)    the person received no benefit because of the transaction; or

(b)    in relation to each benefit that the person received because of the transaction:

(i)    the person received the benefit in good faith; and

(ii)    at the time when the person received the benefit:

(A)    the person had no reasonable grounds for suspecting that the company was insolvent at that time or would become insolvent…

…

104    The liquidators submit that as regards to the requirements set out in (b)(ii) above it is relevant to know what a reasonable person would have concluded by applying the banks’ credit ratings. Only by knowing whether those provisions were met could any view be formed whether the banks had no reasonable grounds for concluding that the company was insolvent at the time or would become insolvent.

105    The liquidators rely upon the decision of the High Court in Hamilton v Oades (1989) 166 CLR 486 in which Mason CJ referred (at 497-498) to the extensive weight which must be given to the views of liquidators when a court is considering whether to order an examination under s 541 of the extant Companies (New South Wales) Code. Mason CJ at 496-497 said:

There are two important public purposes that the examination is designed to serve. One is to enable the liquidator to gather information which will assist him in the winding up; that involves protecting the interests of creditors. The other is to enable evidence and information to be obtained to support the bringing of criminal charges in connexion with the company’s affairs: Mortimer v. Brown. Sub-section (2)(a) and (b) emphasizes the high public importance of these purpose. The examination is designed to elicit, among other things, evidence and information relating to the question whether the witness “has been, or may have been, guilty of fraud negligence, default, breach of trust, breach of duty or other misconduct in relation to” the corporation.

106    The above passage was cited by Lander J in Evans v Wainter Pty Ltd (2005) 145 FCR 176 at [111].

Findings

107    As stated above, s 9 of the Act defines ‘examinable affairs’ as follows:

'examinable affairs", in relation to a corporation means:

(a)    the promotion, formation, management, administration or winding up of the corporation; or

(b)    any other affairs of the corporation (including anything that is included in the corporation's affairs because of section 53); or

(c)    the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation's examinable affairs because of paragraph (a) or (b).

108    Such definition has been expanded by s 53 of the Act and provides a more detailed description of those matters. Order 33 Rule 13 of the Rules provided that the person being examined could be required to produce ‘any document or thing specified or described in the order’. Further, s 597(9) of the Act empowers the Court to produce ‘at an examination of that or any other person, books that are in the first-mentioned person’s possession and are relevant to matters to which the examination relates or will relate’. The term ‘books’ is defined in s 9 of the Act to include:

(a)    a register; and

(b)    any other record of information; and

(c)    financial reports or financial records, however compiled, recorded or stored; and

(d)    a document;

…

109    The Acts Interpretation Act 1901 (Cth) (as recently amended by the Acts Interpretation Amendment Act 2011 (Cth)) defines ‘document’ and ‘record’ in section 2B. The Court notes that nothing turns on this amendment. Section 2B now relevantly states:

"document" means any record of information, and includes:

(a)    anything on which there is writing;

(b)    anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c)    anything from which sounds, images or writings can be reproduced with or without the aid of any other article or device.

"record" includes information stored or recorded by means of a computer.

110    Basten JA in Meteyard established at [42] that the power under the Act to examine is to be confined solely to the affairs of the company under review. Further the power provided by s 597(9) of the Act empowering a court to order production of documents is confined to those documents ‘relevant to matters to which examination relates or will relate’. It follows that the examination must be confined to records relating to ABC Learning’s examinable affairs.

111    In Re BPTC Ltd (in liq) (No 5) Bryson J said at 763:

In Re BPTC Ltd (in liq) (No 2) (1992) 8 ACSR 533; 10 ACLC 1431 McLelland J at a number of points referred to the width of the power to compel production of documents, and to the need for wide powers but at the same time also referred to the need to avoid oppressive operation. His Honour recognised the need for a relation between the order for production of documents and the purposes of examining persons under s 597; if information is to be obtained, it is obtained from that examination, and the production of documents is ancillary to the process of examination. See too Re BPTC Ltd (in liq) (No 3) (1993) 11 ACLC 365. An order for production of documents which had the effect of compelling a production of documents which were not required for the examination would in my opinion be oppressive; an order for production which had that purpose would in my opinion be made in excess of the power to make such order.

112    As was also observed by Bryson J in Re BPTC Ltd (in liq) (No 5) at 766:

McLelland J repeated these views in Re BPTC Ltd (in liq) (No 3) (1993) 11 ACLC 365. At p 368 his Honour made a number of observations which appear to me to be of present importance. These observations emphasised, in my respectful view correctly, the ancillary nature of the exercise of compelling production of documents, and the limitation of the exercise so that it cannot be undertaken for the purpose of obtaining information independently of the examination of particular individuals. The evolution of some extension of the circumstances in which discovery is obtainable has been firmly resisted, and in my view this resistance ought to be maintained. Discovery is a burdensome and expensive obligation placed on litigants, it is very intrusive into their affairs and involves imposing serious responsibilities on them, in respect of which penalties could conceivably be imposed and forensic disadvantages may be incurred. Close attention by the litigant and by professional advisers is required both in preparing discovery lists and in making use of documents produced on discovery and information contained in them. Considerable sensitivity must be maintained to parties’ rights to privilege against production, to confidentiality and to limited circulation and use of information compulsorily revealed to opponents in litigation. Silent or unconscious extensions, without the usual safeguards, of discovery should not be required by orders of the court under Pt 36 r 12.

113    I respectfully concur and adopt his Honour’s observations. Paragraph 1 of Schedule 2 of the July 2011 Orders calls for documents relating to the internal operations and activities of the banks. Those documents are not documents within the ambit of examinable affairs of the ABC Learning Group and based upon the above principles the banks are entitled to the relief they seek in their interlocutory application with respect to the Paragraph 1 documents.

114    However with respect to the documents referred to in Paragraph 2 of Schedule 2 of the July 2011 Orders, that is the documents relating to ABC Learning Group, these documents are relevant to the trading activities of ABC Learning. Accordingly such documents fall within the definition of examinable affairs set out in ss 9 and 53 of the Act. It follows that these documents are documents to which the liquidators are entitled to have access.

(c) Ambiguity

115    The banks submit that the orders are ambiguous or uncertain. The banks rely upon the fact that O 33 r 13(1)(b) of the Rules provided that an order made in reliance thereof must be for production ‘of any documents or thing specified in the order’. Thus it is akin to a subpoena and must convey to the recipient, in clear language, the document or class of documents required to be produced. The banks rely upon the decision of Re Nielsen and Moller Autoglass (NSW) Pty Ltd (in liq) (2008) 222 FLR 21 at [27]-[29]; Re Bill Express Ltd at [29]-[33] in support of such contention.

116    The banks submit that Orders 1 and 2 of the July 2011 Orders are unclear. Paragraph 1 of Schedule 2 has been set out above. Paragraph 2 of Schedule 2 provides:

All documents in the period 1 September 2007 to 31 July 2008 (inclusive) evidencing or recording the standard or internal policies or procedures relating to credit ratings or risk ratings of You pursuant to or by which You reviewed, assessed, considered and/or determined:

(a)    an application or request for credit by ABC or for the amendment or variation of the terms of any credit previously provided to ABC;

(b)    a credit rating or risk rating assigned to or in respect of ABC; and/or

(c)    a probability, chance or likelihood of default rating or marker assigned to or in respect of ABC.

117    The banks submit that the concept of documents ‘recording the standard or internal policies or procedures relating to credit ratings or risk ratings’ is uncertain. Further as to Paragraph 1, the banks submit that the phrase ‘in the nature of policy or procedure documentation’ is equally vague and does not identify the documents required to be produced.

118    The liquidators submit that they have endeavoured to meet such argument by informing the banks precisely of those documents which they seek. The liquidators submit that they require the Definitions Documents, which have already been provided subject to the confidentiality regime and also the documents identified in the Schedule which became Exhibit J. It is submitted that there is now no basis for the argument of ambiguity to be raised.

119    The Court has considered the provisions of Exhibit J but finds that such provisions are still too broad, since the categories of documents required to be produced are not limited to those which relate to ABC Learning. If Paragraph 2 of Schedule 2 of the July 2011 Orders is redrafted in the precise form of Exhibit J, the Court finds that the production of such documents is not ambiguous and is not oppressive.

(d) Preponderance of interests

120    The banks finally submit that the July 2011 Orders should be set aside because the legitimate interests of the liquidators in obtaining access to the documents are outweighed by the banks’ interests in maintaining their confidentiality. The banks rely upon Re BPTC Ltd (in liq) (1994) 14 ACSR 460 at 463, and upon the observations of Lander J in Southern Cross Petroleum Sales (SA) Pty Ltd (in liq) v Hirsch (1998) 70 SASR 527. Lander J when considering the discretion conferred on the Court by s 596B of the Act observed at 536-537 that the Court could have regard:

… to the expressed purpose of the examination; the importance of the information to the eligible applicant; the seriousness of the matters to be inquired into; the use to which the information obtained in the examination might be put; the possibility of an advantage to the eligible applicant which he or she would not otherwise enjoy and the concomitant disadvantage to the prospective examinee; the availability of the information from other sources; the cost to the prospective examinee in attending for examination; whether the information sought is so peripheral to make the attendance of the prospective examinees oppressive; and the wider public interest in investigating the affairs of the corporation.

121    The liquidators refer to the competing interests of the parties. The liquidators submit that the balance is now in favour of permitting the liquidators to have access to the documents, subject to the confidentiality regime proposed. The liquidators acknowledge that the documents relate to credit ratings and how credit ratings are derived and the use or uses to which they might be put. The liquidators submit that the documents will be highly relevant to a possible defence of good faith under s 588FG of the Act which the banks might raise in relation to the action to set aside the charges pursuant to s 588FG(2).

122    The Court is mindful of the need to carefully balance respective interests of the liquidators in fulfilling their statutory duties as already discussed, compared to the banks’ interest in maintaining confidentiality especially in relation to their highly sensitive documents. Mason CJ in Hamilton v Oades approved the observations of Street J (as he then was) in Re Hugh J Roberts Pty Ltd (in liq) [1970] 2 NSWR 582 at 585, where Street J found that information may be obtained by a liquidator:

… in connection with proceedings he believes he might be able to bring, proceedings he contemplates bringing, proceedings he has decided to bring and proceedings he has already brought.

123    For the reasons already provided the Court considers that the statutory duties of the liquidators outweigh the interests of the banks in maintaining the confidentiality of the documents referred to in Paragraph 2 of Schedule 2 of the July 2011 Orders.

CONCLUSION

124    In respect of the banks’ application, the Court orders that:

1.    Paragraph 1 of Schedule 2 of the orders made on 8 July 2011 in these proceedings be set aside.

2.    Within 21 days, the parties formulate a precise form of order to accord with the findings of the Court concerning the documents to be produced under Paragraph 2 of Schedule 2 to orders made on 8 July 2011.

3.    Each party pay their own costs of and incidental to the banks’ interlocutory process.

Associate:

Dated:    3 February 2012

Schedule

Federal Court of Australia        No. 1257 of 2009

District Registry: New South Wales

Division: General

IN THE MATTER OF A.B.C. LEARNING CENTRES LIMITED (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 079 736 664 (NOW KNOWN AS ZYX LEARNING CENTRES LIMITED) AND OF THE COMPANIES LISTED IN SCHEDULE 1

Applicants on the Second Interlocutory Process

Second Applicant on the Second Interlocutory Process:     Westpac Banking Corporation

Third Applicant on the Second Interlocutory Process:     National Australia Bank Limited

Fourth Applicant on the Second Interlocutory Process:     Australia and New Zealand Banking Group Limited

Fifth Applicant on the Second Interlocutory Process:     Bank of America N.A.

Sixth Applicant on the Second Interlocutory Process:     Citibank, N.A.

Seventh Applicant on the Second Interlocutory Process:     Mizuho Corporate Bank Limited

Eighth Applicant on the Second Interlocutory Process:     Bank of Western Australia Limited

Schedule 1