FEDERAL COURT OF AUSTRALIA

Gothard v Fell, in the matter of Allco Finance Group Ltd (receivers and managers appointed) (in liq) [2012] FCA 495

IN THE MATTER OF ALLCO FINANCE GROUP LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION)

THE COURT ORDERS THAT:

1.    To the extent necessary, the applicant be released from any implied undertaking concerning the use of the RAML DataBase (as identified in the reasons for judgment) so that the applicant may use the RAML Database for The purposes of considering in the course of the receivership of Allco, and, if they see fit, causing Allco to pursue, proceedings against Gordon Edward Christopher Fell and/or David Raymond Coe for contraventions of their duties to Allco under the Corporations Act 2001 (Cth) and/or the general law in relation to the Rubicon Transaction (as identified in the reasons for judgment).

2.    Each of the persons referred to in Schedule 3 to the amended interlocutory application filed on 23 April 2012 be released from his or her Confidentiality Undertaking (as identified in the reasons for judgment) in respect of the documents referred to in Schedule 1 of the amended interlocutory application, in so far as the Confidentiality Undertaking prohibits them:

(a)    using the documents and the information in the documents to assist the applicants to consider in the course of the receivership of Allco, and if they see fit, causing Allco to pursue, proceedings against Gordon Edward Christopher Fell and/or David Raymond Coe for contraventions of their duties to Allco under the Corporations Act 2001 (Cth) and/or the general law in relation to the Rubicon Transaction;

(b)    disclosing the documents or the information contained in them to any person for the purpose referred to in paragraph 2(a) above, provided that the person to whom disclosure is made has given an undertaking in the same terms as the Confidentiality Undertaking but subject to the proviso that nothing in the Confidentiality Undertaking prevents the person from using the documents and the information in the documents for the purpose referred to in paragraph 2(a) above.

3.    To the extent necessary, the applicant is also released from the implied undertakings in the same terms as set out in order 2.

4.    The first and second respondents pay the costs of the applicant.

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

IN THE MATTER OF ALLCO FINANCE GROUP LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION)

REASONS FOR JUDGMENT

Introduction

1             Until its demise in November 2008, Allco Finance Group Limited (“Allco”) was a listed public company. Its directors included Mr David Coe and Dr Gordon Fell. In October 2007 about 12 months before its collapse, Allco entered into a related party transaction under which Allco purchased the 79.6% shareholding in Rubicon Holdings (Aust) Ltd (“Rubicon”) which Allco did not already own. That transaction is known as the Rubicon Transaction.

2    The shares in Rubicon which Allco acquired in the Rubicon Transaction were purchased from companies associated with Mr Coe and Dr Fell. The consideration provided by Allco to those companies comprised shares in Allco and a cash component amounting to almost $64 million.

3    ASIC issued notices to Dr Fell under ss 30 and 33 of the Australian Securities Investment Commission Act 2001 (Cth) (“ASIC Act”), commencing in February 2008, to produce documents relating to the Rubicon Transaction. Over 12 months later, commencing in April 2009, the Australian Securities Investment Commission (“ASIC”) conducted examinations under s 19 of the ASIC Act, of a large number of persons, including Mr Coe and Dr Fell, in relation to matters that ASIC was then investigating with respect to the collapse of Allco. Those matters included the Rubicon Transaction.

4    The present application, which is made by the Receivers of Allco, concerns the use which the Receivers may make of the transcripts of the ASIC examinations. In particular, the Receivers seek to be released from an express undertaking given by the Receivers to ASIC when the Receivers obtained access to the examination transcripts produced by ASIC in response to subpoenas for the production of the transcripts.

The background facts

5    The background facts may be stated briefly. They commence, as I have said, with the Rubicon Transaction which occurred on or about 23 October 2007.

6    On 4 November 2008, Westpac Banking Corporation (Westpac) appointed the Receivers as Receivers and Managers of Allco. Administrators were appointed on the same day, and, later, Allco was ordered to be wound up.

7    At the date of the Receivers’ appointment, the debt owed by Allco to a syndicate of lenders headed by Westpac was more than $700 million.

8    Rubicon entered receivership three days after Allco, that is to say on 7 November 2008.

9    In the course of its investigation of Allco, ASIC conducted examinations under s 19, or obtained documents under ss 30 and 33, from 57 persons. The examinations commenced in April 2009 and were conducted on a large number of days in 2009 with further examinations being conducted as late as December 2010.

10    Mr Coe was compulsorily examined by officers of ASIC on at least four days, and Dr Fell on at least six days. The subject matter of the examinations of Dr Fell on most of those days appears to have concerned the Rubicon Transaction.

11    On 2 December 2009, on the application of the Receivers, the Court issued summonses for examination under s 596A of the Corporations Act 2001 (Cth) for the examination of former directors and officers of Allco with respect to the examinable affairs of that company. The examinees named in those summonses included Mr Coe and Dr Fell who were served with their summonses in January 2010.

12    At the time when the Receivers applied for the issue of the examination summonses, they were not aware that ASIC had already conducted examinations under s 19 of the ASIC Act. When the Receivers became aware of the ASIC examinations they obtained from the Court a subpoena to ASIC to produce the transcripts of ASIC’s examinations.

13    The initial subpoena was issued on 18 February 2010. Its relevance to the present application is only as to background insofar as it provides the genesis for the express undertakings as to confidentiality which are in issue in the present application.

14    The Receivers seek to be released from their undertakings in respect of two subpoenas. The first was issued on 26 October 2010 and the second on 7 April 2011. Each of those subpoenas sought transcripts and examination bundles created in the course of the s 19 examinations conducted by ASIC in relation to the Rubicon Transaction.

15    The terms on which access would be permitted to the documents produced in answer to the subpoenas were the subject of correspondence between the solicitors for the Receivers and ASIC. There was also correspondence between the Receivers’ solicitors and the solicitors for Mr Coe and Dr Fell.

16    On 17 November 2010 a Registrar of the Court made orders in relation to the October subpoena restricting access to those persons who executed a confidentiality undertaking in the form attached and marked “A”.

17    The undertaking provides relevantly that the signatories undertake:

    not to disclose the Confidential Information and Confidential Documents (as defined) except inter alia as required or permitted by an order of the Court.

    not to use the Confidential Information or Confidential Documents “for any purposes other than for the conduct of these proceedings”; and

    to use best endeavours to prevent disclosure to any person after the completion of the proceedings.

18    The confidentiality undertaking was signed by the Receivers, their employees and their legal representatives on various dates between 17 November 2010 and 12 September 2011.

19    On 7 April 2011 a second subpoena was issued to ASIC at the request of the Receivers (“the second subpoena”). The second subpoena sought production of further transcripts and examination bundles created in the s 19 examinations.

20    The second subpoena also sought production of a database, known as the RAML Database, containing documents relating to the Rubicon Transaction. The database was produced by a subsidiary of Allco. There is no opposition in the present application to a release of the undertakings that apply to the database.

21    A Registrar of the Court made access orders in receipt of the further transcripts and examination bundles produced by ASIC in answer to the second subpoena. The order was made on 4 May 2011 in the same terms as the earlier order. That is to say, access was restricted to persons who signed a confidentiality undertaking in the same terms as the undertaking referred to above.

22    Between 5 May 2011 and 12 September 2011, the Receivers, their employees and their legal advisers signed the second confidentiality undertaking.

23    On 8 September 2011 Dr Fell was examined by Senior Counsel for the Receivers. The examination summonses had been listed for a period of five days but Dr Fell was the only examinee. He was examined for less than a full day. During the examination, a number of documents from the s 19 examination bundles were referred to and read out in open court.

24    At the conclusion of his examination, the Registrar made orders standing the examination over to a date to be fixed. The effect of the Registrar’s orders is that Dr Fell is excused from further attendance.

25    Mr Coe was scheduled to be examined by the Receivers on 12 and 13 September 2011 but a few days earlier, the solicitors for the Receivers notified Mr Coe that he was not required for further examination.

26    There had been earlier examination of Mr Coe and Dr Fell during March 2010. Dr Fell was questioned at that time about various topics but only briefly about the Rubicon Transaction. Mr Coe was examined about matters other than the Rubicon Transaction.

The proposed causes of action which the Receivers wish to consider

27    The proceedings which the Receivers wish to consider were set out in paragraph 27 of an affidavit of Mr Andrew Korbel sworn 31 January 2012.

28    Mr Korbel stated that the Receivers would like to use the s 19 transcripts and the examination bundles for the purpose of considering, and if they see fit, causing Allco to pursue proceedings against Mr Coe and Dr Fell:

relating to the Rubicon Transaction arising from a contravention of their duties to Allco under the Corporations Act 2001 and/or the general law.

29    Subsequently, there was correspondence between the solicitors for Mr Coe and Dr Fell and the solicitors for the Receivers. In answer to complaints about the vagueness of the proposed cause of action asserted by the Receivers, the solicitors for the Receivers refined the terms of the causes of action which they wish to consider.

30    In particular, the Receivers’ solicitors stated that the causes of action against Dr Fell which the Receivers wish to consider include, but are not limited to, whether Dr Fell breached his duties to Allco under s 180(1) and/or s 181(1) of the Corporations Act:

by failing to disclose to the company matters known to him, in particular regarding the financial position of Rubicon, which were material to the Rubicon Transaction.

31    In further correspondence, the Receivers’ solicitors suggested that any claim for damages against Dr Fell is likely to exceed $60 million having regard to the cash payment made to the vendors in the Rubicon Transaction.

Opposition to the order

32    Of the 57 persons who were examined by ASIC or who produced documents to ASIC in the course of the s 19 examinations, 21 persons, including Mr Coe and Dr Fell have indicated that they oppose the orders sought by the Receivers.

33             Mr Coe and Dr Fell were the only objectors who appeared at the hearing. Mr P M Wood, who appeared for Dr Fell raised a number of objections, including several matters of principle. Mr G K Rich, who appeared for Mr Coe, adopted and relied upon the same grounds of objection as those which were raised by Mr Wood.

The principles

34    The principles which govern the question of whether a party should be released from an express undertaking to keep material confidential are the same as those which apply to the release of the implied undertaking in respect of the use of documents produced in the course of litigation: Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 8] [2008] WASC 20 at [24] – [25].

35    The “special circumstances” test stated by Wilcox J in Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 at 225 is well established. It was accepted by a Full Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31]; cf Ambridge Investments Pty Ltd v Baker [No 3] [2010] VSC 545 at [33].

36    What is involved is a balancing exercise which takes into account the nature of the material produced, the policy underlying the undertaking and any other relevant factors arising from all the circumstances. The question to be determined in that exercise is whether the needs of justice are better served by releasing or maintaining the undertaking: Wellness Pty Ltd v Hamilton-Bond & Co [2002] NSWSC 1259 at [8].

37    Giving effect to the statutory policy which underlies the provisions of Part 5.9 of the Corporations Act dealing with the examination of persons about the affairs of a corporation can constitute special circumstances: Re Eurostar Pty Ltd (in liq) [2003] NSWSC 633 at [26] per Campbell J. His Honour also observed at [15] that the special considerations which arise from the legislative policy of Part 5.9 are an overlay and qualification to the special circumstances principle stated in the authorities.

38    A number of authorities in relation to Part 5.9 have dealt with the question of the principles which apply where a liquidator wished to release documents to a creditor. Where a creditor seeks access to the product of a compulsory examination, release of the undertaking may be justified on two bases identified by Santow J in Re New Cap Reinsurance Corp Holdings Ltd; Gibbons [2001] NSWSC 835 at [17].

39    The first is where the documents have the potential to assist the beneficial winding up of the company for the creditors as a whole. The second is that release of the documents will serve the wider statutory purpose of investigating and potentially prosecuting (civilly or criminally) those who have contributed to the causes of the corporate collapse.

40    In New Cap, Santow J stated the first basis in broad terms, namely the release of the undertaking will be appropriate where it offers “sufficient potential or prospect” of increasing the dividend available to creditors: see New Cap at [22] and [24].

41    In Eurostar at [26], Campbell J stated the test in more prescriptive terms. His Honour said that the statutory purpose of assisting creditors to recover from persons involved in the downfall of a corporation is one which the Court needs to be persuaded has “a realistic prospect” of success.

Whether the special circumstances test is satisfied

42    The gravamen of the submission put by the Receivers was that the special circumstances test is satisfied because the purpose for which the Receivers wish to use the s 19 transcripts and examination bundles is to consider those documents to determine whether to pursue proceedings against two former directors of Allco and, if so, to commence those proceedings. This was said to be consistent with the purpose for which the examinations were conducted.

43    That purpose was also said to be not inconsistent with the use which was contemplated to be made of the documents under the terms of the express confidentiality undertaking itself which prevented the Receivers from using the documents other than for the purpose of the conduct of “those proceedings”, that is to say, the examinations.

44    Although Mr J C Sheahan SC for the Receivers acknowledged the terms of that limitation, the effect of what he said was that use for the purpose of the examinations necessarily contemplated the possibility that the documents would be used for the purposes now sought. Indeed, the Receivers said, it follows that the intended purpose is not collateral to the purpose of use within the examination proceedings and is harmonious with the working out of the objectives pursued by ASIC in its investigation of the Rubicon Transaction.

45    The substance of the submissions of Mr Wood was that the use proposed by the Receivers cannot be said to be part of the process of getting in the assets of Allco for the benefit of the creditors generally. Rather, what follows from the quantum of the claim (which according to Dr Fell’s submissions is to be limited by the amount of the cash consideration of $64 million) is that the Receivers wish to pursue any claim for the sole benefit of the secured creditors.

46    Thus, at the heart of Mr Wood’s submission is the proposition that the Receivers are in the position of creditors who wish to have access to the documents to consider, and if thought fit, to pursue a claim against Dr Fell and Mr Coe. Mr Wood submits that it follows in these circumstances that the Receivers must establish a realistic prospect of success in any contemplated proceeding. This was said to follow from the approach taken by Santow J in New Cap, and in particular from that of Campbell J in Eurostar.

47    Mr Wood submits that, on this approach, the intended use stated in Mr Korbel’s affidavit, and refined in the solicitors’ letter, is too vague and uncertain to reveal any prospects of success.

48    It seems to me that the effect of the authorities, in particular New Cap and Eurostar, is that the question of whether special circumstances exist in the present application is to be determined by reference to the objectives which underlie the statutory regime contained in Division 1 of Part 5.9 of the Corporations Act.

49    However, I do not consider that it follows that I must accept the approach urged on me on behalf of Mr Coe and Dr Fell. In particular, I reject the submission made by Mr Wood that the position of the Receivers is analogous to that of a creditor pursuing a claim against a third party. Here, the Receivers stand in the shoes of Allco and were an “eligible applicant” for the examination summonses pursuant to which the subpoenas were issued: see s 596A of the Corporations Act and the definition of “eligible applicant” in s 9.

50    It is evident from the fact that the examination summonses were issued that the Receivers were authorised by ASIC to make application under Division 1 of Part 5.9 for the summonses: see the definition in s 9 of the Corporations Act and, in particular para (e) of the definition.

51    The examination summonses, and the steps taken under it, were an investigatory proceeding established under Part 5.9. Once the Receivers were appointed as an eligible applicant, they had standing to conduct the examinations and were entrusted with carrying through the purposes that underlie Part 5.9: Eurostar at [28].

52    Those purposes include, as Santow J observed in New Cap at [15] the wider statutory purpose of investigating and potentially instituting proceedings against those who have contributed to the corporate collapse.

53    It is therefore not to the point that the Receivers’ articulation of the claim lacks the degree of precision necessary to test the question of its prospects of success. Nor is it an answer to suggest that any claim may be limited to the cash component of the consideration paid in the Rubicon Transaction and, hence, may not benefit the unsecured creditors of Allco.

54    The position is quite different from that which existed in Royal Guardian Mortgage Corporation Pty Ltd v Australian Mortgage Securities Pty Ltd [2011] NSWSC 967. That case did not concern an undertaking given in relation to documents obtained for the purposes of an examination. Moreover, McDougall J held at [64] that the proposed proceedings were not maintainable.

55    Also, the observations made by Vickery J in Ambridge at [54] have no application to the present case. There, his Honour stated that the balancing exercise required under the special circumstances test could not be carried out without identification of the precise cause of action sought to be pursued in the second proceeding. However, that case did not concern the overlay on the special circumstances test arising from Part 5.9 of the Corporations Act.

56    In my opinion, the documents for which release from the undertaking is sought by the Receivers are sufficiently specified in the application and in Mr Korbel’s affidavit. They are the documents which were produced in answer to the subpoenas. Again, the position here is different from that which existed before Vickery J: see Ambridge at [52].

57    It is true, as Mr Wood submits, that what the Receivers seek is access to every single page of every one of the transcripts and examination bundles. The ambit of the release from the undertaking is therefore very wide. Indeed, it would give the Receivers a complete release notwithstanding that it is unlikely that the Receivers need every part of the transcripts and documents to consider and institute any proceedings against Mr Coe and Dr Fell.

58    However, the answer to the difficulty is that it would have been open to the Receivers to have carried out that exercise for the purpose of the examination. There is some force in Mr Wood’s submission that the exercise of “mining” the documents which the Receivers now wish to undertake should have been undertaken before the examination of Dr Fell. Certainly, that would have been in the best interests of the speedy administration of justice. But it seems to me that the delay is not so great that the Receivers should be prevented from now doing that which they would have been entitled to do in the course of the examinations.

59    In coming to this view, I have taken into account the approach which the Receivers took at the examination of Dr Fell on 8 September 2011. Whether or not the course which was adopted was the preferable one, I do not consider that the Receivers should now be prejudiced by adopting a course that was considered to be a sensible one at the time of the examination. Indeed, there is some suggestion that it was a course that was proposed by the examinees but I have not taken that into account.

60    Here, the critical consideration seems to me to be that the legislative policy contained in Part 5.9 of the Corporations Act points in favour of a departure from the general principle as to when a court will permit the use for purposes other than the proceedings in which they were obtained, of documents obtained by compulsory process, namely the transcripts and examination bundles: Eurostar at [15].

Whether leave is necessary

61    Mr Sheahan submitted that leave of the Court is not necessary and that the present application is made out of an abundance of caution. He relied upon a number of authorities in support of that submission.

62    The effect of the authorities is that a liquidator is entitled to use information or documents produced in an examination for the purpose of subsequent proceedings to get in and realise the assets of the company in liquidation without the leave of the Court: Re Southern Equities Corporation Ltd (in liq); Bond v England (1997) 25 ASCR 394 at 437 (per Lander J); Duke Group Ltd (in liq) v Pilmer (1993) 60 SASR 29 at 34 (per Mullighan J); Spedley Securities Ltd (in Liq) v Bank of New Zealand (1991) 26 NSWLR 711.

63    However, the difficulty which arises in the present case is that the express undertaking prevented use of the documents other than for the conduct of “these proceedings”, that is to say, the examination.

64    But the short answer to Mr Wood’s submission is that, for reasons set out above, I am of the view that there are special circumstances which justify the release of the undertaking.

Whether the undertakings constituted a compromise

65    Mr Wood submitted that in the present application the Receivers face a higher threshold than that of “special circumstances” because the confidentiality undertaking effected a compromise between the Receivers and ASIC or the persons who had been examined by ASIC in the s 19 examinations.

66    It followed, on this approach, that the orders made by the Registrar gave effect to a contract made by the parties which could not be set aside or varied save on equitable grounds: Harvey v Phillips (1956) 95 CLR 235 at 243-244.

67    I reject this submission because, in my opinion, the Registrar’s order, which gave effect to the confidentiality undertaking agreed between the parties, was no more than an arrangement of the type commonly made for the disposition of procedural matters arising in the conduct of litigation: cf R D Werner & Co Inc v Bailey Aluminium Products Pty Limited (1988) 18 FCR 389 at 390-392 (per Woodward and Foster JJ).

68    Even if it was a binding contract, the Court nevertheless has power to vary it. The order was interlocutory and the Court retains power to control such orders: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178; R D Werner at 392 (per Woodward and Foster JJ) and at 399-400 (per Jenkinson J).

69    Here the existence of special circumstances as stated above is sufficient to warrant a variation of the orders so as to give effect to a release of the undertaking.

The BPTC principle

70    Mr Wood relied upon the principle stated by McLelland J in Re BPTC Ltd (in Liq) (No 3) (1993) 29 NSWLR 708 at 712 in support of the proposition that the Court must be satisfied that the claims relied upon by the Receivers must have substance. The principle stated by McClelland J, and reiterated in a later authority by Bryson J, is that there must be a relation between the order for production of the documents and the examination: see Re BTPC Ltd (in liq) (1993) 10 ACSR 756 at 763.

71    The principle stated by McLelland and Bryson JJ was well established under the regime that was in force prior to the introduction of the Corporate Law Reform Act 1992 (Cth). However, in S & V Nominees Pty Ltd (in liq) v Rabobank Australia Ltd (formerly known as Primary Industry Bank of Australia Ltd) (2010) 78 ACSR 85 at [42], Besanko J considered that the decision of Bryson J in BPTC is not applicable under the present regime. His Honour pointed in particular to the terms of s 596D(2) of the ASIC Act.

72    By contrast, Barrett J appears to have assumed in In the Matter of Kevin Jacobsen Pty Limited [2011] NSWSC 1539 at [11] to [13], that the principle as stated by Bryson J in BPTC is of continuing application.

73    Even if the BPTC principle continues to represent the law, I do not consider that it supports Mr Wood’s contention. This is because it is concerned only with the need for a connection between an order for production of documents in an examination and the examination itself.

74    Here, the documents have been produced and the only question is whether the Receivers may use them for the purpose referred to above.

75    For the same reason, I reject Mr Wood’s submission that the documents referred to in the interlocutory process and in paragraphs 12 and 18 of Mr Korbel’s affidavit are described in terms that are too vague and general: cf Re BPTC Ltd (in Liq) (1993) 29 NSWLR 712 at 719.

76    The fact that some (or indeed most) of the documents were not deployed in the examination of Dr Fell is not to the point. The documents, having been produced, were capable of informing the examination and I am unable to conclude that they were extraneous to the topic of the Rubicon Transaction: see Re New Cap at [39].

Limitations arising from the ASIC Act

77    Information obtained or documents produced pursuant to the compulsory process of an examination under the ASIC Act are subject to a limitation on the extent of disclosure and use to which the information and documents may be disseminated. The extent of the permitted dissemination or use is limited by the purpose for which the power of examination was conferred. Thus, the examinee has a claim to protection of confidentiality in the information: Johns v Australian Securities Commission (1993) 178 CLR 408 at 423 (per Brennan J); Maronis Holdings Limited v Nippon Credit Australia Ltd (2000) 18 ACLC 609 at [9] (per Bryson J).

78    However, as Bryson J said in Maronis at [9], the claim for protection of confidentiality is not unqualified because disclosure may take place in the course of proper use of the information for the purpose for which it was obtained.

79    Here, the use proposed by the Receivers is consistent with the qualification stated by Bryson J. It is also supported by the observations made by Lander J in the Southern Equities and in the other authorities referred to at [62] above. Just as ASIC would have been entitled to use the information and documents for the purpose of a prosecution or a civil proceeding under s 50 of the ASIC Act, so too the Receivers may have access to the information and documents and use them for the purpose of determining whether to bring proceedings against Mr Coe and Dr Fell, and if thought fit, to institute the proceedings.

Conclusion and orders

80    I propose to make the orders sought by the Receivers in the interlocutory process. Mr Coe and Dr Fell are to pay the costs of this application.

Associate:

Dated:    15 May 2012