Federal Court of Australia

McGrath, in the matter of IE CA 3 Holdings Ltd [2025] FCA 635

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory applications filed on 6 May 2025 by Mr William Roberts and Mr Daniel Roberts be respectively dismissed.

2.    Mr William Roberts and Mr Daniel Roberts pay the plaintiffs’ costs as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    The present proceedings arise in the context of a cross-border insolvency. The immediate, and urgent, application to be determined is whether, under r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), the examination summonses (Summonses) issued to Mr William Roberts and Mr Daniel Roberts (the Examinees) under s 596A (as against William) and s 596B (as against Daniel) of the Corporations Act 2001 (Cth) (Corporations Act) should be set aside.

2    As I will return to below, time does not permit me to set out the full and somewhat complicated factual background to the present application. However, the factual substratum is canvassed in previous decisions of this Court: see PricewaterhouseCoopers Inc in its Capacity as Foreign Representative of IE CA 3 Holdings Ltd v IE CA Holdings Ltd [2024] FCA 1208 (Markovic J) (Recognition Decision or RD); Iris Energy Ltd v PricewaterhouseCoopers Inc in its capacity as foreign representative of IE CA 3 Holdings Ltd [2024] FCA 1297 (Stewart J) (Stay Decision); IREN Ltd v PricewaterhouseCoopers Inc in its capacity as foreign representative of IE CA 3 Holdings Ltd [2025] FCAFC 52 (Sarah C Derrington, Stewart and Feutrill JJ) (Full Court Decision or FCD).

3    The application to set aside the Summonses was allocated to my docket on 26 May 2025. On 27 May 2025, I informed the parties that I could hear the application on 11 and/or 12 June 2025. The Examinees wished to be heard about matters relevant to that listing and, accordingly, a case management hearing was listed on 4 June 2025. It is unnecessary to traverse the matters ventilated during that hearing, other than to indicate that, as I will return to much later in these reasons, the party moving on the Summonses did not wish to delay the examinations that are to commence on Monday, 16 June 2025 and, as a result, I listed the matter for hearing on Wednesday, 11 June 2025.

4    It will be obvious from this precis that these reasons and my determination of the application to set aside the Summonses has been conducted with as much cautious haste as has been practicable.

5    For the reasons that follow, I have concluded that Examinees’ application to set aside the Summonses should be dismissed.

2.    BACKGROUND

6    The principal facts can be briefly and quickly stated as follows.

7    The first and second plaintiffs are the locally appointed representatives of the trustee in bankruptcy (Local Trustee Representatives) of the second and third plaintiffs, IE CA 3 Holding Ltd and IE CA 4 Holding Ltd (the Debtor Companies). The Debtor Companies were incorporated under the laws of British Columbia and are both subsidiaries of IREN Limited. IREN was incorporated in Australia and is the ultimate holding company and second-largest creditor of the Debtor Companies. It was formerly known as Iris Energy Ltd. It is listed on the NASDAQ exchange. IREN’s registered office is in Melbourne, Victoria, its principal place of business is in Sydney, New South Wales and three of its six current directors are located in New South Wales.

8    IREN has approximately 27 subsidiaries in Canada, the United States of America (USA) and Australia. The IREN group of companies (IREN Group) is primarily engaged in the business of owning and operating Bitcoin mining data centres and undertaking Bitcoin mining. Bitcoin mining involves the application of computational power to generate multiple guesses aimed at solving mathematical problems. When the guess is successful, the winner receives an “award” in the form of Bitcoin. The IREN Group’s operations in British Columbia included approximately 36,400 mining servers owned by the Debtor Companies (Bitcoin Mining Equipment). The Debtor Companies, which appear to be special purpose vehicles incorporated for the purposes of owning the Bitcoin Mining Equipment, purchased that Equipment from Bitmain Technologies Limited (Bitmain). This purchase was financed by a third party, NYDIG ABL LLC (NYDIG), pursuant to two master equipment financing agreements (MEFS).

9    On 20 January 2023, following what appears to have been defaults on the MEFS, NYDIG, who by then was the largest creditor of the Debtor Companies, filed a petition seeking the appointment of a receiver and manager over the property, assets and undertakings of the Debtor Companies.

10    On 3 February 2023, the Supreme Court of British Columbia (BC Supreme Court) appointed PricewaterhouseCoopers Inc (PwC) as “Receiver”. In this office, PwC provided the First, Second and Third Reports to the BC Supreme Court on 10 March, 10 April and 7 June 2023. Thereafter, on 13 June 2023, Milman J of the BC Supreme Court made orders authorising the Receiver to assign the Debtor Companies into bankruptcy. The necessary documents were filed on 27 June 2023 and on 28 June 2023 the Receiver assigned the Debtor Companies into bankruptcy. On the same day, PwC was appointed as trustee of the bankrupt estates under the Bankruptcy and Insolvency Act RSC 1985, c.B-3 (BI Act).

11    On 18 July 2023 and 21 August 2023, resolutions were passed at meetings of creditors of the Debtor Companies by which PwC was authorised to examine six proposed examinees pursuant to the power conferred on it as trustee by s 163(1) of the BI Act to which I will return.

12    On 3 August 2023, PwC wrote to the proposed examinees requesting their attendance for examination in Vancouver. Among the persons that PwC proposed to examine included Mr William Roberts and Mr Daniel Roberts.

13    On 14 August 2023, the solicitors for IREN objected to this request and, thereafter, PwC filed an application in the BC Supreme Court on 24 October 2023 seeking to examine the proposed examinees about their knowledge of the Debtor Companies’ affairs. This application was heard by Milman J and resulted in a judgment delivered on 1 December 2023: IE CA 3 Holdings Ltd. (Re), 2023 BCSC 2120 (Examination Decision or ED). His Lordship relevantly concluded that the matter was worthy of further investigation by examination but determined that PwC had failed to present a sufficient evidentiary basis to justify the examination of Mr Daniel Roberts and another person, Mr David Batholomew: ED [48]. Accordingly, his Lordship made orders requiring IREN to make the other four proposed examinees available for examination by PwC within 60 days: ED [51]. This included Mr William Roberts. However, his Lordship concluded that PwC could choose the sequence in which the examination of the four examinees were to occur and may examine two of them (as selected by PwC) for up to a one full day and the others for no longer than one half-day each: ED [52]. Finally, Milman J stated that the partes had “leave to see further directions following the completion of those examinations if they are unable to agree on whether others are required”: ED [53].

14    Between 23 January 2024 and 15 March 2024, PwC examined all of the four examinees contemplated by the orders of Milman J: RD [47]. Information requests were made at these examinations and were responded to by the examinees’ solicitors on 24 May 2024.

15    By an originating process lodged on 17 September 2024, PwC commenced a proceeding in this Court in its capacity as foreign representative of the Debtor Companies (Foreign Recognition Proceeding). By this process, it sought the recognition of the Canadian Bankruptcy Proceeding (Vancouver Registry Action No S230488) as a foreign proceeding pursuant to Art 17 of the UNCITRAL Model Law on Cross-Border Insolvency, as implemented into Australian law by s 6 of the Cross-Border Insolvency Act 2008 (Cth) (CBI Act).

16    On 9 October 2024, this proceeding was heard before Markovic J and IREN was granted leave to appear as intervener in the proceeding for all purposes: T2.46–T3.3. In that capacity, IREN opposed the recognition of the Bankruptcy Proceeding as a foreign proceeding. The primary argument advanced by IREN was that granting recognition would be contrary to the public policy of Australia. This contention was founded upon the public policy exception contained in Art 6 of the Uniform Law, which contemplates a Court refusing to recognise a foreign proceeding where it “would be manifestly contrary to the public policy of [the] State”. IREN also contended that the proceeding was an abuse of process. However, as I will come to address, that argument was framed in more expansive terms than has been put before me.

17    On 18 October 2024, Markovic J handed down the Recognition Decision. By this Decision, the Bankruptcy Proceeding was recognised under Art 17 of the Model Law: RD [173]. Her Honour also considered it necessary to grant relief under Art 21 of the Model to appoint [the Local Representatives] as liquidators under the Corporations Act and to facilitate the investigation of the role of the Australian based directors in the context of the bankruptcy of the Debtor Companies: RD [169].

18    On 1 November 2024, IREN filed an application for leave to appeal from the entirety of the Recognition Decision. IREN also sought a stay of certain orders made in the Recognition Proceeding pending the outcome of the application to appeal (Stay Application): SD [1]. The primary subject of the Stay Application was orders 6 and 7 of the Recognition Decision. By these orders, the Local Trustee Representatives were invested with the powers of a liquidator under the Corporations Act and were permitted to examines witnesses, take evidence and require the delivery of information concerning each of the Debtor Companies’ affairs, rights, obligations or liabilities (Stay Application).

19    On 6 November 2024, the Local Representatives filed an application in this Court by which leave was sought to issue a summons for examination to Mr William Roberts under s 596A of the Corporations Act.

20    On 7 November 2024, Stewart J conducted an urgent interlocutory hearing to determine the Stay Application. His Honour delivered the Stay Judgment on 11 November 2024, dismissing the Stay Application.

21    On 18 December 2024, the Local Representatives filed a further application in this Court, by which leave was sought to issue a summons for examination to Mr Daniel Roberts under s 596B of the Corporations Act.

22    On 28 March 2025, the Full Court heard IREN’s application for leave to appeal from the Recognition Decision. The application was dismissed: Full Court Decision at [51].

23    On 11 April 2025, Registrar Schmidt made orders approving the form of summons to be issued to, among other, Messrs William Roberts and Daniel Roberts, requiring them to attend before the Court for examination on 10 June 2025. There were also orders for production directed to IREN at this time.

24    On 27 April 2025, the Summonses were filed in this Court and they were served on Mr Daniel Roberts on 29 April 2025 and on Mr William Roberts on 5 May 2025.

25    On 6 May 2025, the Examinees each filed an application to set aside the Summonses. In the meantime, Registrar Schmidt adjourned the return of those Summonses until Monday, 16 June 2025.

3.    THE EXAMINEES’ CONTENTIONS

26    The Examinees contended that the Summonses should be set aside as they amounted to an abuse of process of this Court. They relied upon well settled principles that examination summonses may be set aside when an attempt to invoke the public examination machinery under the Corporations Act amounts to an abuse of process: Re Newheadspace Pty Limited (in liq) [2020] NSWSC 173; 144 ACSR 224 at [97]–[107] (Rees J); Shangri-La Construction Pty Ltd v Hyatt, in the matter of GVE Hampton Pty Ltd (in liquidation) (No 2) [2021] FCA 1048 at [25]–[37] (Middleton J). It was submitted that this would, for example, arise where an applicant for an examination summons has a predominant purpose foreign to that which the legislature intended: Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) [2022] HCA 3; 275 CLR 508 at [19] (Kiefel CJ and Keane J), [97] (Gageler J) and [129], [131], [135] and [170] (Edelman and Steward JJ). Although acknowledging that the categories of abuse of process are not closed, the Examinees submitted that an abuse of process will arise where: (1) the Court’s procedures are invoked for an illegitimate purpose; (2) the use of the Court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the Court’s procedures would bring the administration of justice into disrepute: relying on Batistatos v Roads and Traffic Authority NSW [2006] HCA 27; 226 CLR 256 at [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

27    The Examinees advanced three primary contentions in support of their application to set aside the Summonses.

28    First, it was submitted that the Local Trustee Representatives’ purpose in seeking to examine the Examinees in this Court was to “circumvent” the restrictions that PwC faced in Canada as a result of the orders made by and reasons of Milman J. During the course of oral submissions, Senior Counsel for the Examinees contended that this arose either because the orders and reasons of Milman J “required”, “obliged” or “compelled” PwC to return to the BC Supreme Court in the event that it wished to further examine Mr William Roberts or to make any further application to examine Mr Daniel Roberts. It was submitted that this was also necessary by reason of the operation of s 163(1) of BI Act. Further, it was submitted that, even if the orders and reasons of Milman J did not require PwC to return to the BC Supreme Court, it was nevertheless appropriate to do so as a matter of the operation of the rules, and also conventions, applicable in that jurisdiction.

29    In support of this contention, the Examinees relied upon the paucity and generality of the evidence that the Local Trustee Representatives had relied upon in seeking to have the Summonses issued and called upon in the Australian jurisdiction. The Examinees submitted that the only evidence before me as to the plaintiffs’ purpose in seeking to issue the Summonses were the affidavits of Ms Grant (Senior Vice President, Corporate Advisory & Restructuring of PwC on British Columbia, Canada) that were filed in the Foreign Recognition Proceeding before Markovic J of this Court. It was submitted that Ms Grant had deposed that the purpose for the Examinations was: (a) because PwC had not been permitted to examine Mr Daniel Roberts, (b) the limited time made available to examine the examinees that PwC had examined to date, including Mr William Roberts, (c) the insufficiency of information obtained from those examinees and questions that remained unanswered, (d) PwC formed the viewed that its investigations would be more appropriately progressed in Australia and result in claims against directors and officers of the Debtor Companies, and (e) PwC wished to use the broader examination powers available in Australia. The Examinees submitted that this evidence only reinforced that PwC’s purpose was to circumvent the effect of the orders and reasons of Milman J.

30    Second, relatedly, it was submitted that (a) the further examination of Mr William Roberts was oppressive because he had already undergone an examination in Canada and Mr Daniel Roberts had succeeded in resisting an application that he be examined, and (b) in those circumstances, it was “prima facie vexatious and oppressive … to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matters in issue”, at least where “the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter”: citing and quoting from Henry v Henry [1996] HCA 51; 185 CLR 571 at 591 (Dawson, Gaudron, McHugh and Gummow JJ). In support of these contentions, the Examinees submitted that the litigation before the BC Supreme Court remains extant and, despite this, they are being subjected to parallel proceedings in which they are again being met with an application to be examined in relation to the same broad subject matter which has already been litigated and in respect of which they have succeeded.

31    Third, again, relatedly, it was submitted that it would bring the administration of justice into disrepute if, following a litigated determination of the permissible examinations of the Examinees in the BC Supreme Court and that Court’s ordering of liberty to apply, that this Court were used as a means to achieve an outcome that would be inconsistent with Milman J’s judgment contrary to the trustee’s responsibilities under Canadian law as an officer of the court. It was submitted that to allow the two examinations to proceed against the Examinees would facilitate an abuse of process on this basis.

32    It will be apparent from the above that one overarching theme underlying the Examinees’ contentions was that this Court’s processes were being brought to bear by PwC and its locally appointed representatives in a way that is inconsistent with Canadian law and the orders and reasons of Milman J and, in particular, doing so without first satisfying the BC Supreme Court that there was, in the case of Mr William Roberts, any warrant for further examinations outside the bounds of what Milman J had ordered and, in the case of Mr Daniel Roberts, without satisfying the BC Supreme Court that there were any new or fresh circumstances justifying his examination. It was submitted that in this respect any broader examination powers under Australian law did not permit PwC to fail to fulfil its “legal duty under Canadian law” or to permit it to act outside the bounds set by the Canadian courts.

33    In support of their contentions, the Examinees relied upon the expert opinion of Mr John Grieve KC, a legal practitioner and a member of his Majesty’s Counsel, with substantial experience in bankruptcy and insolvency proceedings in Canada.

34    The Local Trustee Representatives disputed each of the contentions advanced by the Examinees and relied upon the expert opinion of Mr Francis Lamer, a solicitor and barrister admitted to practice in Canada and a Partner in the law firm, Kornfield LLP. Mr Lamer has extensive experience in commercial litigation in Canada including in relation to bankruptcy and insolvency proceedings.

35    It is next necessary to turn to this and the other evidence that was before me.

4.    THE EVIDENCE AND FINDINGS

36    The Examinees relied upon the following evidence:

(a)    the affidavit of Mr Daniel John Roberts with exhibit DJR-1;

(b)    the affidavit of Mr William Gregory Roberts with exhibit WGR-1;

(c)    the affidavit of Mr Hassan Muhammed (solicitor employed Norton Rose Fullbright Australia, the Examinee’s solicitors) with exhibit HM-1;

(d)    the second affidavit of Mr Hassan Muhammed with exhibit HM-2; and

(e)    the affidavit of Mr John Grieve KC with exhibit JG-1.

37    The Local Trustee Representatives relied upon the following evidence:

(a)    the affidavit of Mr Charles Vernon William Ray (solicitor employed White & Case LLP, Australia, the Examinee’s solicitors) affirmed on 22 May 2025 with exhibit CVWR1;

(b)    the affidavit of Francis Lamer with annexures FL1, FL2, FL3 and FL4 affirmed on 21 May 2025; and

38    In addition, the Local Trustee Representatives relied upon the affidavits of Ms Michelle Anne Grant (Senior Vice President, Corporate Advisory and Restructuring, PwC, Canada), which were read and relied upon in the Foreign Recognition Proceeding before Markovic J. Curiously, the most substantive affidavit of Ms Grant was an annexure to the affidavit of Mr Daniel Roberts and, therefore, also relied upon by the Examinees.

39    The parties also relied upon the tender of materials located in the court book which was marked as Exhibit 1.

40    The only witnesses that were cross-examined were Mr Grieve KC and Mr Lamer. All of the other evidence was received without objection, and was unchallenged.

41    In the way that the respective parties advanced their contentions, it was assumed that the operation of Canadian law including the proper interpretation of Milman J’s orders and analysis of his Lordship’s reasons were matters of fact which would be guided by expert opinion. I have proceeded on the basis that the parties conducted the case before, but for my part I doubt that an analysis of Milman J’s reasons is truly a matter of fact in respect of which expert opinion is determinative.

42    In what follows, I set out my assessment of the relevant evidence and make findings where it is necessary to do so. However, before turning to address these matters, it is necessary for to say something about the two experts. I found both Mr Grieve KC and Mr Lamer to both be witnesses with considerable experience in the relevant Canadian law and, specifically, in relation to the substantive and procedural law (including as to practice and procedure) relating to the bankruptcy and insolvency proceedings in that jurisdiction. There was considerable agreement between them as to most matters and, to the extent that they had any areas of disagreement, my assessment was that these reflected (as might be expected) differences of professional opinion in respect of matters which lend themselves to such differences. As in this jurisdiction, it is unsurprising that the relevant substantive and procedural law of Canada is not absolute in every respect and is as productive of differences of opinion as it is elsewhere.

4.1    The role of trustees in Canada and relevant aspects of the BI Act

43    It was not in dispute that the BI Act is Canadian federal legislation that has paramountcy over provincial legislation in matters involving bankruptcy and insolvency. It is supported by the Bankruptcy and Insolvency General Rules, C.R.C c. 368 (BIA General Rules) which provide for specific procedural rules applicable to proceedings under the BI Act.

44    Nor was it in dispute that a trustee in bankruptcy is not only appointed in effect as an officer of the relevant court but also owes fiduciary duties to the bankrupt and creditors. Although Mr Grieve KC expressed the opinion that trustees also owe fiduciary duties to a broader group of stakeholders including directors of the bankrupt corporation, it is unnecessary to decide whether that is the case for present purposes.

45    Relevantly, s 163 of the BI Act deals with the examinations. It provides as follows:

Examination of bankrupt and others by trustee

163(1)     The trustee, on ordinary resolution passed by the creditors or on the written request or resolution of a majority of the inspectors, may, without an order, examine under oath before the registrar of the court or other authorized person, the bankrupt, any person reasonably thought to have knowledge of the affairs of the bankrupt or any person who is or has been an agent or a mandatary, or a clerk, a servant, an officer, a director or an employee of the bankrupt, respecting the bankrupt or the bankrupt's dealings or property and may order any person liable to be so examined to produce any books, documents, correspondence or papers in that person's possession or power relating in all or in part to the bankrupt or the bankrupt's dealings or property.

Examination of bankrupt, trustee and others by a creditor

(2)     On the application to the court by the Superintendent, any creditor or other interested person and on sufficient cause being shown, an order may be made for the examination under oath, before the registrar or other authorized person, of the trustee, the bankrupt, an inspector or a creditor, or any other person named in the order, for the purpose of investigating the administration of the estate of any bankrupt, and the court may further order any person liable to be so examined to produce any books, documents, correspondence or papers in the person's possession or power relating in all or in part to the bankrupt, the trustee or any creditor, the costs of the examination and investigation to be in the discretion of the court.

46    Facially at least, s 163(1) of the BI Act is a provision that empowers a trustee (if the relevant resolution is passed by creditors or a request or resolution has been made by inspectors) to conduct examinations without the need for an order of a relevant court. However, such examinations are limited to those persons who it is “reasonably thought” have knowledge of the affairs of the bankrupt or are relevantly persons who have been an agent, clerk, servant, officer, director or employee of the bankrupt “respecting the bankrupt or the bankrupt's dealings or property”. Although the text of s 163(1) does not specifically say so, it was common ground as between Mr Grieve KC and Mr Lamer that a trustee may seek to examine such a person if they are willing to be so examined.

47    Section 163(1) is silent as to what is to occur if the relevant person is unwilling to attend to an examination. Based on the evidence of Mr Grieve KC and Mr Lamer, I accept that, where a person is unwilling (for whatever reason) to be examined by a trustee, the usual and ordinary practice in the Canadian jurisdiction is to make an application to a relevant court to seek a declaration and/or other orders which have the effect of directing that person to attend an examination if the relevant court is satisfied that such orders should be made. It is unnecessary to decide whether this involves the relevant Canadian court exercising inherent or implied power, but it is what occurs. The accepted position is that the relevant court may exercise its discretion to limit the number of examinees, the number of examinations attended by each examinee, the time and location of the examinations, and other matters relating to the conduct of the examinations, if they are to occur. The relevant may, of course, decline to permit an examination if it is not satisfied that the prospective examinee is a person who it could be “reasonably thought” to have knowledge of the affairs of the bankrupt or is not a person who has been an agent, clerk, servant, officer, director or employee of the bankrupt “respecting the bankrupt or the bankrupt's dealings or property”.

48    As I return to below, it was s 163(1) which was relevant to the application that was made before Milman J. Mr Lamer expressed the opinion that s 163(2) was also relevant and may have been the source of the Court’s power, but as I return to below it is apparent that Milman J was asked to proceed under s 163(1) and his Lordship’s reasons bear that out.

4.2    The application before Milman J and his Lordship’s orders and reasons

49    PwC had sought to examine six persons, including Messrs William and Daniel Roberts: ED [12]. Each of those six persons resided outside Canada: ED [2]. Each of them were, or are, directors or officers of the Debtor Companies or IREN: ED [2]. Only Mr William Roberts had agreed to be examined by PwC, but on certain conditions: ED [3]. Each of the other persons resisted the examinations.

50    On or about 24 October 2023, PwC filed an application in the BC Supreme Court seeking the following orders (the BCSC Application):

1.     An Order substantially in the form attached at Schedule "A" hereto (the "Order"):

(a)     declaring that in accordance with section 163 (1) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (`BW'), the Trustee may: (a) examine any person reasonably 'thought to have knowledge of the affairs of the Debtors or any person who is or has been an agent or a mandatary, or a clerk, a servant, an officer, a director or an employee of the Debtors (or either one of them), respecting the Debtors or the Debtors' dealings or property, and (b) require any person liable to be so examined to produce any books, documents, corr6spondence or papers in that person's possession or power relating in all or in part to the Debtors or the Debtors' dealings or property;

(b)     directing the individuals already identified by the Trustee, namely, William Roberts, Daniel Roberts, Chris Guzowski, Michael Alfred, David Bartholomew and Belinda Nucifora (the "First Set of Individuals"), to attend for examination within 30 days of the date of the Order at the date, place and time specified by the Trustee, and to produce such books, documents, correspondence or papers in their possession or power relating in all or in part to the Debtors or the Debtors' dealings or property, in all cases as requested by the Trustee;

(c)     in the alternative, directing Iris Energy to require and direct the First Set of Individuals to attend for such examinations and produce such books, documents, correspondence or papers in their possession as specified by the Trustee;

(d)     directing such further or other individuals as may be requested by the Trustee following completion of the Trustee's examination of the First Set of Individuals in accordance with section 163(1) of the BIA to attend for examination within 30 days of receipt of the Trustee's request to examine, at the date, place and time specified by the Trustee, and to produce such books, documents, correspondence or papers in their possession or power relating in all of in part to the Debtors or the Debtors' dealings or property, in all cases as requested by the Trustee;

(e)     directing that all examinations shall proceed in person in Vancouver, British Columbia unless otherwise agreed in writing by the Trustee or ordered by the Court; and

(f)     granting such further and other relief as counsel may request and this Honourable Court may deem just.

51    As will be apparent from the above, the orders that PwC sought were framed by reference to s 163(1) of the BI Act.

52    The BCSC Application also set out the “Factual Basis” and “Legal Basis” for the relief that it sought. It is not presently necessary to dwell on the BCSC Application, other than to observe that it discloses that:

(a)    the proposed examinees (other than Mr William Roberts) opposed the examinations;

(b)    three of the proposed examinees including Mr Daniel Roberts opposed being examined on the basis that they were not resident in Canada and were not former directors, officers, employees, or agents of the Debtor Companies;

(c)    two of the other proposed examinees contended that their examination was unnecessary;

(d)    Mr William Roberts “insisted” that that his examination either be conducted in Sydney, Australia or proceed virtually by Microsoft Teams; and

(e)    PwC took the position in relation to Mr Daniel Roberts that he was a co-founder of IREN and was integral to the formation and structuring of the Iris Energy Group (including the Debtor Companies).

53    The evidence filed in support of the BCSC was not put into evidence in the application before me, and, as a result, I do not know what evidence was presented to the BC Supreme Court in support of its claims for relief. As I return to below, there was some limited evidence from Mr Rae as to certain matters that were not in the evidence before Milman J.

54    The BCSC Application was heard before Milman J. His Lordship’s reasons disclose that by the time of the hearing, PwC proposed to examine Mr Daniel Roberts and Ms Belinda Nucifora (CFO of IREN) for one full day each and the others for a half day each, and agreed that all such examinations would occur remotely by videoconference: ED [12]–[13].

55    In relation to s 163(1), Milman J reasoned that it was a “broadly worded” provision which had no geographical limitation on the classes of persons to be examined: ED [30]. His Lordship further observed that s 163(1) empowers a trustee to examine such persons “without an order” and an order is only necessary where a proposed examinee refuses to comply: ED [30]. His Lordship then proceeded to reject the examinee’s contentions that the BC Supreme Court had no jurisdiction to make the orders sought against them because they resided overseas: ED [31] –[35].

56    Milman J next turned to address whether there should be limits placed on the number of examinations and the use of the information obtained through them: ED [36]–[49]. In doing so, his Lordship observed that the proposed examinees had submitted that PwC should commence by examining Mr William Roberts, “…with a view to examining one or more of the others thereafter only if satisfactory answers are not forthcoming from him”: ED [37]. As to this submission, Milman J stated as follows (ED [38]):

In support of its request to examine six individuals in the first instance, the Trustee has alleged that IEL and its affiliates have, to date, been less than entirely forthcoming in responding to questions about the Debtors’ and their affairs. IEL and the Debtors deny this. However, the evidence adduced on this application supports the Trustee’s contention that, despite the documents and information already received, many questions remain unanswered.

57    It is also relevant to note these further aspects of his Lordship’s reasons at [40]–[46]:

[40]     Another factor in my analysis was that the flow of funds among the Debtors and their affiliates was complex and, in some cases, undocumented. I noted that the receiver was still in the process of reconstructing how funds had flowed in and out of the Debtors’ accounts prior to the receivership.

[41]     Since then, PWC has delivered its fourth report as receiver, dated August 17, 2023. That report updated the receiver’s earlier analysis on those and other matters in light of the information and documents that had been provided by IEL to that point.

[42]    The report identified seven material intercompany transactions involving the Debtors that the receiver believed to be outside the ordinary course of business. The report noted further that the Debtors had transacted with as many as six different corporate affiliates, for reasons that remain obscure. The receiver has expressed dissatisfaction with the explanations provided by IEL for those transactions and wishes to investigate further, armed with the powers of a trustee in bankruptcy.

[43]     In addition, the receiver has reported that IEL has refused to produce complete and unredacted copies of its bank statements. In response, William Roberts has deposed that IEL has offered to provide further information pertaining to specific transactions, but that offer has not been taken up by the receiver.

[44]     Calculating the value of the bitcoin rewards that IEL received using the Debtors’ hashpower has proven to be complicated for a variety of reasons. One of them is that IEL directed the hashpower generated by numerous rigs, including those of the Debtors, into a mining pool. The receiver wishes to investigate the basis for IEL’s allocation of the resulting bitcoin rewards among the contributing rigs.

[45]     The report also raises concerns with respect to the duration of the period during which the Debtors operated the equipment. According to the receiver, IEL has not explained why it took as long as it did for the Debtors’ equipment to begin operating after it was delivered. Moreover, the receiver wishes to investigate why the Debtors’ equipment was unplugged, wrapped and palleted soon after NYDIG gave notice of its intention to enforce its security, thereby rendering the equipment unusable and depriving the receiver of revenue that could have gone to reduce the indebtedness.

[46]     IEL’s explanation for that conduct is that NYDIG failed to exercise its rights under the Landlord Waiver Agreements with the hosts, which would have allowed NYDIG to continue to operate the equipment following an event of default. They add that, because of that failure, the hosts were left with no assurance that the associated hosting fees would continue to be paid. However, the receiver has reported that it offered to enter into short-term hosting agreements with the hosts for this purpose, but this was refused.

58    Having considered all this evidence, Milman J was satisfied that there were matters worthy of further investigation, stating (ED [47]):

Having considered the evidence adduced on this application in light of the parties’ submissions, I am satisfied that the matters canvassed in the preceding paragraphs are worthy of further investigation by the Trustee, including by way of one or more examinations under s. 163.

59    However, his Lordship was not satisfied, on the evidence before him, that all six examinees should be examined, stating (ED [48]):

However, the Trustee has not demonstrated that all six of the proposed examinees fall within at least one of the categories of examinable persons listed in s. 163. I accept that Michael Alfred, William Roberts and Christopher Guzowski, as former directors of the Debtors, as well as Belinda Nucifora, as CFO of IEL (and, as such, a person “reasonably thought to have knowledge of the affairs of the bankrupt”) meet that description. On other hand, the Trustee has not presented a sufficient evidentiary basis to justify including Daniel Roberts and David Bartholomew on that list. Accordingly, my order will, for now, be restricted to the other four.

(Emphasis added.)

60    Bearing the above matters in mind, Milman J concluded as follows:

[50]     The application is allowed in part.

[51]     Within the next 60 days, IEL is to make available the following individuals for examination by the Trustee by way of videoconference:

a)     William Roberts;

b)     Belinda Nucifora;

c)     Michael Alfred; and

d)     Christopher Guzowski.

[52]     The Trustee may choose the sequence in which those examinations will occur and may examine two of those individuals, to be selected by the Trustee, for up to one full day and others for no longer than one half-day each.

[53]     The parties have leave to seek further directions following the completion of those examinations if they are unable to agree on whether others are required.

(Emphasis added.)

61    The orders made by Milman J were as follows:

4.3    The expert evidence as to the effect of Milman J’s orders and reasons in the context of Canadian law

62    There was a dispute between the parties as to whether the orders and reasons of Milman J “required” PwC to make a further application to his Lordship or the BC Supreme Court in the event that they sought to (a) further examine Mr William Roberts, and/or (b) examine Mr Daniel Roberts. There was a further dispute between the parties as to whether PwC would need to establish changed circumstances and/or adduce “fresh evidence” if it wished to make further applications in relation to Messrs William and Daniel Roberts.

4.3.1    Mr Grieve KC’s opinions

63    In preparing his evidence, Mr Grieve KC was asked to opine on, among other things, the following:

1.     Given the judgment of Milman J in IE CA 3 Holdings Ltd. (Re), 2023 BCSC 2120 (dealing with the trustee's application for examinations in Canada) and the facts you have been instructed to assume, if the trustee sought to conduct further examinations in Canada under the Bl Act:

a.    Is it necessary for the trustee to return to the Canadian court to obtain court approval to examine William Gregory Roberts (who was previously examined), or can the trustee conduct an examination of William Gregory Roberts before the registrar under s 163 of the Bl Act without the need for a court order?

64    In response to this question, Mr Grieve KC expressed the following opinion:

In my opinion, leaving aside the recognition proceedings pursued in Australia, it would not be appropriate for the Trustee to conduct a further examination of William Gregory Roberts before a registrar under section 163 of the Bl Act without first obtaining directions from Mr. Justice Milman or another Justice of the BCSC, In Bankruptcy…

(Emphasis added.)

65    It will be immediately apparent that, though asked to opine on whether it was “necessary” to do so, Mr Grieve KC’s opinion did not go that far and was expressed as being a matter that he did not consider to be appropriate. Mr Grieve KC’s opinion did not disclose the basis for the standard of “appropriateness”, but as explained in his oral evidence he based this on his experience of what would and should occur as a matter of professional practice in the Canadian jurisdiction. However, as I will explain, Mr Grieve KC accepted that there was ambiguity as to whether Milman J’s orders required PwC to return to Milman J.

66    The opinions expressed by Mr Grieve KC in his report may be summarised as follows:

(a)    Mr Grieve KC considered that, as the trustee is an officer of the court, the “Trustee is bound to respect the Order it sought from its supervising Court”. It is his opinion “that the bankruptcy court has spoken in an Order that was not appealed” and, in those circumstances, PwC should have returned to the BC Supreme Court to seek such orders. Mr Grieve KC regarded this as being consistent with what Milman J had in mind when his Lordship made orders granting leave to the parties to seek further directions following the completion of the examinations contemplated by his Lordship’s orders in the event the parties were unable to agree on whether other examinations were required.

(b)    Mr Grieve KC further opined that, although s 163(1) makes no express provision for second examinations of a person who has already been examined under that subsection, it has been held that this may occur where there exists a need to obtain further knowledge of the affairs of the bankrupt, his or her dealings and property: citing In Re Leard (1995) 30 CBR (3d) 312 (Ont Gen Div).

(c)    Mr Grieve KC suggested that a further examination would require an application to be made to the relevant Court and in such an application the trustee would need to establish its need to obtain further knowledge including, for example, because of “unanswered relevant questions” or where undertakings had been made but not complied with. Mr Grieve KC’s opinions in this respect were expressed on the basis that s 187(5) of the BI Act empowers the relevant Court to revise or vary an order, which would be exercised sparingly as a dissatisfied party would ordinarily need to institute an appeal. Mr Grieve KC relied on a leading text (Houlden LW, Morawetz GB and Sarra J, Annotated Bankruptcy and Insolvency Act (Carswell, 2021)) in which the authors extracted a passage from the decision in Re Garrity (2006) 21 CBR 237 (5th) (Alta QB) in which a framework was laid down for variations to be made to an existing order as follows:

…as a framework for judicial consideration of section 187(5) applications (i) Whether the order should remain in force because of changed circumstances or fresh evidence, and not, as an appeal, whether it ought to have been made; (ii) Fresh evidence in this context means that is material, substantial in nature, and something that, with reasonable diligence could not have been known at the time of the original application (iii) the application must be made promptly, within a reasonable time of acquiring knowledge of the order; (iv) review jurisdiction is exercised, sparingly; (v) in exercising, it’s a direction the court must consider the rights not only of the debtor and of the creditors but of the public, ([vi]) the court should resort to its section 187(5) jurisdiction if it is just and expedient in the control of its own process; (vii) trustee conduct is a factor where statutory non-compliance results in a lack of notice, particularly if it negatively affects the integrity of the bankruptcy system, and (viii) the applicant bears the onus of establishing that exercise of review jurisdiction is warranted.

(d)    Mr Grieve KC expressed the view that these considerations would apply to any application made by PwC to further examine Mr William Roberts and to make a further application to examine Mr Daniel Roberts, such that there “must be new evidence that is substantial in nature or a significant change in circumstances to justify an order changing the parameters of the s. 163 examination”. His view was that it would be insufficient that the trustee was merely unsatisfied with the results of the first examination.

(e)    In relation to the proposed examination of Mr Daniel Roberts, Mr Grieve KC’s opinion is that, even though the Milman J did not dismiss PwC’s application in this respect, “the whole tenor of [his Lordship’s] judgment was that it was dismissed, with leave to reapply”. Mr Grieve KC viewed it as an “aggressive step” for a trustee to make a new attempt to examine Mr Daniel Roberts, without seeking leave of the BC Supreme Court. It is Mr Grieve KC’s opinion that it would be “against the spirit and letter of the ruling” made by Milman J for PwC to seek to examine Mr Daniel Roberts without approval and it should return to the BC Supreme Court to seek that examination. Mr Grieve KC said that in any such further application, PwC would need to show a “significant change in circumstances” to warrant the examination of Mr Daniel Roberts in circumstances where it had been denied that right by Milman J.

67    In his cross-examination, Mr Grieve KC agreed with the opinions that Mr Lamer had expressed (which are set out below) as to the general inquisitorial role of trustees in bankruptcy: T27.45-28.15.

68    Mr Grieve KC accepted that a trustee in bankruptcy was not limited to conducting a single examination of any given examinee and, in his words, had a right to “return to the well”: T12.19-24. Mr Grieve KC further accepted that the reason why he had expressed the opinion that it would not be “appropriate” for PwC to seek to engage in examinations of Messrs William and Daniel Roberts without first returning to Milman J or the BC Supreme Court was because of his views as to the orders made by his Lordship: T15.1-3. However, after being taken to the text of the orders made by Milman J and his Lordship’s reasons at ED [13], [52]–[53], Mr Grieve KC accepted that the one day limitation upon the examination of Mr William Roberts came from a position that PwC had itself advanced and Milman J had in fact left it in the discretion of PwC as to the sequence of the examinations and which of the examinees it would examine for up to one day and which it would do so for up to half a day: T18.12-44.

69    Mr Grieve KC agreed that there was nothing specifically stated in Milman J’s reasons that prevented further examinations being conducted under s 163(1): T19.8-10. Mr Grieve KC also agreed that Milman J’s orders did not one way or another indicate whether they were permissive or compulsive and further accepted that a court order is not required in order for a trustee to conduct further examinations under s 163(1): T19.12-23. Mr Grieve KC accepted Mr Lamer’s opinions about these matters (as set out below), but indicated that his point was that in the Canadian jurisdiction each court in provincial jurisdictions had its own unique court rules and the practise and procedure is that a particular judge tends to become seized of an insolvency matter such that, viewed in that context, Mr Grieve KC’s concern was whether PwC as a trustee and officer of the court. It is perhaps to set out his relevant evidence in full. He said at T19.35-20.34:

[Milman J] did not specifically say that if the – that – that – that the trustee would not be permitted to set a section – another 163 examination. But my – my point and concern here is – is that the trustee is an officer of the court. It has sought the approbation of an order from the court. It has received that approbation from the court as to who could be examined and – and then parameters on certain of the examinations. And my concern is that having done that, and having sought to invoke the jurisdiction of the court in complicated circumstances with foreign – foreign individuals, where it was difficult to determine if, in fact, there was discretion to order – make those orders in the first place, having made those orders, the judge had in mind – and I – I can’t say what the judge had in mind. But I can say that in ongoing insolvency files, which I have been doing for – for many years, the court – it sets a tone and says, “Here’s what you can do and here’s what you can’t do”. That’s – and if, in fact – and – and I don’t mean to be hyperbolic – but if, in fact, the next day the trustee decided to set down a five-day examination, Daniel Roberts, having – the judge just having said that there was no jurisdiction or – there was no basis upon which he could be examined – that would be against the spirit and the intent of what Mr Justice Milman had ordered. And that the trustee should come back and seek further directions from the judge. That – you know, that’s what – in my view, in my opinion – what they – what they should have done. Because they had sought the approbation of the court for a certain sequence of events and – and outcomes in terms of an examination. And then, having done that, then they had invoked the jurisdiction of the court. And then the court, being the supervising authority, would – would be – come back to court, and the court would say, you’re right, these fellows didn’t answer the questions, or they obfuscated, or they haven’t produced documents, and I am going to give you more jurisdiction and more authority. But – but my point is, here, having sought that approbation and received that approbation, they should have gone back to court if they wanted to go ahead with further examinations or examine someone that the court had said that they weren’t entitled to examine. That – that’s – and based on the practise and procedure in BC courts where judges either are seized of matters or – we have a commercial bench in BC, like they do in Ontario, where the judges try and – and give the continuity to hear matters in ongoing insolvency matters because it saves the court so much time. You don’t have to explain to a new judge a whole bunch of stuff, water under the bridge, and – so – so, yes. My point is, you’re right – I agree 100 per cent. He didn’t specifically say that. It appears to be permissive. But in BC I – my opinion is they should have gone back and said to the judge, “We now have evidence that Daniel Roberts did have knowledge of the affairs, and we want to examine him”. And, frankly, the court probably would have said “Yes”. I – I have no idea. But that – that’s – that’s what I am getting at here. I totally understand that the – the language is ambiguous. I do. And – and I appreciate your concerns about that ambiguity. But – but I – you know, I – my professional opinion, having done this for a long time, is that that – Mr Justice Milman had set parameters, and he would like those fulfilled. Or if they – if the parties couldn’t agree and they wanted to examine someone else, come back. And he would have welcomed them back, and they could have then submitted evidence as to why it was that Daniel Roberts did have knowledge of the affairs of the bankrupt and – and was an appropriate person to be examined.

70    In a similar vein, when later pressed on the basis that a variation to the orders made by Milman J was not necessary, Mr Grieve KC said at T24.44-25:

So there’s no need to amend that order at all if the trustee wants a further examination to be granted by the court, is there?---Well, I don’t agree with you on that point, although I certainly understand the ambiguity. But, no, Milman J has ordered examinations with certain parameters, and he has refused examinations because of certain findings. And so having done that, if the parties – if the trustee wanted to do something that was no longer within the confines or the parameters of what Milman J had ordered, my view is that they needed to return for further directions from His Lordship.

Okay. So my question was, in order to come back and get a further order for examination, no amendment of this order was required, was it?---No, I agree, yes.

71    Mr Grieve KC further accepted that it was not necessary for the trustee to seek an order from a court before seeking to hold a second examination and an order was only necessary if the person did not wish to be examined: T22.7-32. And, this would mean that ordinarily there is no judicial supervision of examinations.

72    As to whether further examinations would require the trustee to establish “fresh circumstances”, Mr Grieve KC accepted that his opinions assumed that in the present case there would need to be an application to vary or revise an order of the court under s 187(5) of the BI Act: T24.15ff. However, with some degree of doubt, he also accepted that, if Milman J had granted leave in respect of other examinations, this would necessarily require an amendment to the orders: T25.6-14. Mr Grieve KC emphasised that his point was in relation to Mr Daniel Roberts, the trustee would need some evidence that he did have knowledge of the affairs of the Debtor Companies and his view was that his aspect of Milman J’s orders was not permissive, it was mandatory: T25.21-26.14.

73    Importantly, Mr Grieve KC agreed that if evidence that had not been before Milman J was put before his Lordship in a subsequent application that demonstrated that Mr Daniel Roberts might reasonably thought to have knowledge of the affairs of the Debtor Companies, it is likely that Milman J would have given leave for Mr Daniel Roberts to be examined: T26.29-45.

74    Mr Grieve KC was challenged as to his opinions that the tenor of Milman J’s reasons was to dismiss the application for an examination of Mr Daniel Roberts: T28-30. Mr Grieve KC accepted that the application had not been dismissed, but considered the distinction being drawn was a fine one as Milman J was not satisfied that evidence established that Mr Daniel Roberts had sufficient knowledge of the affairs of the Debtor Companies. However, again, Mr Grieve KC did accept that if there was new information that suggested Mr Daniel Roberts was reasonably thought to have knowledge of those affairs, it would have been legitimate for PwC to seek orders under s 163(1) from the court: T30.25-28.

4.3.2    Mr Lamer’s opinions

75    Mr Lamer had an entirely different starting premise to Mr Grieve KC. As a substantive matter, Mr Lamer’s opinion is that (as, in fact, observed by Milman J at ED [30]) the power to examine witnesses under s 163(1) of the BI Act “belongs” to the trustee and the Court is “merely empowered to enforce the exercise of that power (where a person refuses to comply) or control its exercise where it is being abused” by the trustee. The exercise of this power is not “contingent” on an application made by the trustee to the relevant court as the power is inherent in the status and responsibilities of the trustee. As a further substantive matter, Mr Lamer did not consider that a trustee is limited to a single examination. Nor did he consider its power to conduct further examinations is subject to the Court’s “right to refuse such order in the event a trustee’s use of this right constitutes harassment”: relying upon Re Chiang (2008) 44 CBR (5th) 145 (Ont SC) (Wilton-Siegel J).

76    Mr Lamer stated that, where an application has been made to the relevant court and has been determined, the court becomes functus officio and the relevant judge’s decision cannot be reversed or revisited, except on an appeal. Mr Lamer opined that, as a matter of general principle, if an application is dismissed, the same application could not again be made unless the relevant court reserved the right to revisit such a decision in the future, but Mr Lamer stated that this general principle is qualified in the exercise of the inquisitorial powers vested in trustees under the BI Act. Mr Lamer observed that this issue had been addressed by Justice Wilton-Siegel in Re Chiang where it was confirmed that the fact that a witness had been previously examined by an order made under s 163 did not restrict the trustee’s ability to conduct subsequent examinations of that same witness. Wilton-Siegel J had stated:

1     The applicants seek an order under section 163(1) of the Bankruptcy and Insolvency Act ("BIA") and Rule 60.18 of the Rules of Civil Procedure requiring Jay Chiang and Christina Chiang to attend an examination under oath to answer questions relating to the business and property of Jay Chiang.

2     A similar order was granted by Cumming J. on July 13, 2006. The respondents eventually attended examinations. The applicants say, however, that they have not completed their examinations and that they require an order compelling the respondents to attend further examinations. The applicants say that they have further questions regarding income and expenses that were not put to the respondent. They also say that they did not have an opportunity to assess the documentation provided by the respondents because it was not delivered until the second day of the earlier examinations.

3     While it could be argued that the order of Cumming J remains in effect, as the applicants suggest, I think that I should treat this motion as a request for a new order in the form of the order of Cumming J. I also think there are ample grounds for such an order.

4     Section 163(1) of the BIA requires the bankrupt and any other persons reasonably thought to have knowledge of the affairs of the bankrupt to submit to an examination by the trustee in bankruptcy. There were unanswered questions left over from the previous examinations for the reasons set out above. There is also evidence of additional monies received in the answers of Christina Chiang to written interrogatories in one of the related proceedings in California and in Christina Chiang's bank statements for late 2007 and 2008. The BIA does not limit a trustee's right of examination to a single examination, as the respondents argue. While the Court may retain the right to refuse such an order in the event a trustee's use of this right constitutes harassment, that is not the situation in this proceeding. Section 163(1) also does not limit the trustee's right to examine Christina Chiang to matters not within the knowledge of Jay Chiang, as the respondents submit.

(Emphasis from original removed.)

77    Mr Lamer expressed the opinion that the same reasoning would apply to a witness whom the trustee was not allowed to examine, if upon the completion of other examinations that the trustee was allowed to conduct there is some justification that arises for an examination of that witness. Mr Lamer stated that this was because of the “inquisitorial nature of the powers vested in any Trustee under the BIA”. Mr Lamer expressed the view that the general rule relating to the finality of decisions made by a court in bankruptcy proceedings had to be examined in light of the purpose and intent of the powers provided for under the BIA. In this regard, Mr Lamer again emphasised that distinct role of trustees under the BIA by way of contradistinction to general proceedings including as to rules of court that would ordinarily be applicable such as discovery. In this regard, Mr Lamer drew attention to the decision in Re Bingham Group Services Corp 2018 BCSC 148 where it was stated that:

It is common ground that an examination for discovery in the action commenced by the trustee will be framed and limited by the pleadings. Section 163(1) has as its rationale something much broader than that. That is the trustee ensuring that he or she gathers all of the information that is necessary for an orderly, complete, and proper administration of the estate and report back to the creditors and the court, if necessary.

78    Mr Lamer, however, emphasised that this did not mean that relevant courts do not supervise the conduct of trustees, but to underscore the point that trustees have broad investigatory powers.

79    Having expressed these opinions about substantive matters, Mr Lamer then addressed his opinions as to the procedural issue as to whether PwC was required to return to Milman J or the BC Supreme Court to seek orders for a further examination of Mr William Roberts and an examination of Mr Daniel Roberts. Mr Lamer’s opinion in this respect was that the trustee could seek to examine these persons by reason of s 163(1) without needing an order from the Court, but it would require the relevant resolutions or agreements of the creditors and/or inspectors. Mr Lamer also expressed opinions as to the appropriateness of relying upon s 163(2) of the BI Act. However, in either event, Mr Lamer did not consider that it was necessary for PwC to seek the leave of Milman J or the BC Supreme Court to do so. Mr Lamer said pursuant to the relevant rules of the BC Supreme Court, that Court could, when making orders, impose any terms and conditions it considered were necessary to further the object of its rules. However, Mr Lamer stated that such an order may not exceed the scope of making provision for further directions as any order when entered is final in nature subject only to an appeal or being reviewed, rescinded or varied under s 187(5) of the BI Act.

80    Mr Lamer expressed the opinion that there was nothing in the order that was entered by Milman J requiring that PwC apply to the BC Supreme Court before exercising its power under s 163(1) of the BI Act. In his opinion, the liberty to apply granted by Milman J was “permissive in nature” and did not operate to “preclude any other remedy being sought or power from being exercised”. Mr Lamer expressed the opinion that any order that constrained the power of the trustee would be inconsistent with the general principle that the management of the estate of the bankrupt was reposed in the trustee and not under the court’s management. In this regard, Mr Lamer stated that the role of the court is to:

a)     assist the trustee in exercising its powers (which is the purpose of Subsection 163(2))

b)     where requested to do so, to adjudicate legal issues; and

c)     to control, in appropriate circumstances, the exercise of the trustee's powers (for example by withholding its assistance under subsection 163(2)).

81    Having regard to these and other matters, Mr Lamer considered that the “liberty to apply” aspect of Milman J’s reasons and orders was ambiguous in scope. Mr Lamer expressed the opinion that his Lordship’s decision:

…does not permanently restrict the Trustee’s power to examine those witnesses he did not require to be examined. He simply ruled that, as matters stood before him, there was no proper justification to examine those other witnesses. The word “others” should be viewed not just as a reference to those witnesses who were not ordered to be examined, but also to any other person who, as a result of the examinations of those witnesses referred to paragraph 51 of [Milman J’s decision], may have information to give to the IECA Trustee which the IECA Trustee considers necessary or useful in the performance of its duties and investigative powers. This is apparent for two reasons:

A)     The Court referred to “whether others are required” instead of more restrictive wording such as “examinations of the other witnesses who were the subject-matter of the application”;

B)     The words used by the Court should be interpreted in light of the nature of the Trustee’s powers at issue, namely inquisitorial powers which allow such investigations to proceed in an incremental manner based on the evidence garnered as the investigation unfolds.

82    As a result of this process of reasoning, Mr Lamer expressed the opinion that the orders and reasons of Milman J did not mandate that PwC proceed only by seeking leave from his Lordship, but could do so if it wished.

83    As to what PwC would need to establish in seeking to further examine Mr William Roberts or examine Mr Daniel Roberts, Mr Lamer’s view is that no different requirement would be imposed irrespective of whether PwC proceeded under s 163 of the BI Act or whether it invoked liberty to apply to Milman J. Mr Lamer did not agree with Mr Grieve KC’s opinion that any further steps of this type would amount to an application to review, rescind or vary Milman J’s orders under s 187(5) of the BI Act. Again, this is because Mr Lamer did not accept the premises upon which Mr Grieve KC had expressed his opinion. However, Mr Lamer accepted that “fresh evidence” or circumstances should be present. In Mr Lamer’s view the real question was what fresh evidence or circumstances would need to be shown. As to these matters, Mr Lamer expressed the following opinions:

46.    Next, in paragraph 21 of Mr. Grieve's opinion, Mr. Grieves states that the following would justify a further examination:

a)     Obfuscation by William Roberts in his answers;

b)     Failure to fulfill undertakings for delivery of documents or answer questions arising out of the examination itself;

c)     If the time allotted is insufficient to allow the trustee to complete a reasonable examination.

47.     I agree that the above would constitute grounds or fresh circumstances upon which to order a further examination of William Roberts but I disagree that those would be the only grounds that would be considered.

48.     However, I disagree with the argument made by Mr. Grieve to the effect that fresh evidence should be “material, substantial in nature, and something that, with reasonable diligence could not have been known at the time of the original application”, referring to Re Garrity, at para. 46(2). This, of course, is a standard applicable to reconsideration of a final adjudication, as distinguished from judicial control of an ongoing process of investigation. In paragraph 46, the Court stated that “The principles governing an application under s. 187(5) are that[…]” and then outlined various propositions that must then be viewed in the context of what was at issue in Re Garrity, namely whether Subsection 187(5) could be invoked to rescind final orders. The decision referred to in support of paragraph 46(2) of this decision was Re Northlands Cafe Inc. (1996), 192 A.R. 211, 1996 CarswellAlta 957 and involved an order annulling a bankrupt’s proposal in bankruptcy. In short, the standards referred to in para. 46 of this decision applied to final orders or adjudications.

49.     The decision in Re Garrity dealt with a final order approving a proposal in bankruptcy, as distinguished from an interlocutory order, which is an inherently different kind of decision than the one at issue here (whether a further examination of Mr. William Roberts should be ordered). The issue was whether a final order could be rescinded under Subsection 187(5). The Court noted that there was existing jurisprudence to the effect that final orders could be rescinded under Subsection 187(5), which would prevent final orders from ever being final…

84    Mr Lamer then stated:

50.     In my opinion, the decision in Re Garrity cannot be relied upon as authority for the stated proposition given the discussion of the caselaw referred to therein and the distinction made between final orders (where the remedy should be an appeal) and interlocutory orders where the Court should be allowed to react to and deal with “changing circumstances”. The decision in Re Debtor referred to by Justice Topolnisky and his discussion of the Court of Appeal decision in Elias v. Hutchison supports the view that, where orders of an interlocutory nature are sought to be changed, the issue is “whether that order ought to remain in force in the light either of changed circumstances or in the light of fresh evidence, whether or not such evidence might have been obtained at the time of the original hearing'”, which is an entirely different standard than the one that would apply to a final adjudication.

51.     In this case, Milman J. made an order assisting PwC in conducting examinations of various witnesses (and declining, to some extent some of the assistance sought) based on what was then known. The decisions referred to in Re Garrity support the view that, where interlocutory orders are concerned, it is sufficient for a court to find that due to “changed circumstances” the previous order ought to be changed.

85    Mr Lamer concluded that, as a result, the “fresh evidence” need not be “substantial in nature” or involve some other “elevated burden”. Mr Lamer’s view was that “Absent conduct that is oppressive or that amounts to harassment, any proper reason to examine an individual under Section 163 that was not before the Court on December 1, 2023 can justify either a new examination of a witness previously examined (like William Roberts) or the examination of a person who, like Daniel Roberts, was not ordered to be examined.” The balance of Mr Lamer’s opinions expressed variations of the same principles, including in their application to the particular instances of Messrs William Roberts and Daniel Roberts, and in responding to Mr Grieve KC’s opinions (including by disagreeing that the steps taken by PwC were aggressive).

86    In cross-examination, Mr Lamer was tested about his opinion as to whether Mr William Roberts could be examined again under s 163(1) without a further order from the Court, and Mr Lamer maintained his position that this was an option but accepted that if the examinee refused to cooperate an order from the Court would be necessary: T40.10-32. If such an application was made to the Court, Mr Lamer stated that the trustee would need to show something more than that which was previously before Milman J: T40.34-42. In his view, changed circumstances would include where the time allotted to the examination was insufficient: T40.44-13. Mr Lamer accepted that there would need to be “fresh circumstances”, but expressed the view that it was going too far to say that this required the trustee to show that it could have brought forward that material with due diligence but the trustee would need to show some good faith and that it was not simply “playing games”; it would depend on the facts: T41.35-42.11. Mr Lamer stated (T42.13-29):

In a sense, that’s just to state the obvious, given it’s a discretion, as you describe it?---Yes. The – a lot of the jurisprudence speaks of where – speak of circumstances where the – the – the power is being exercised for a purpose other than the administration of the estate of the bankrupt. And that would be an abuse of process, of course. But the – but the – I’m not sure – well, first of all, I haven’t been asked to pass judgment on that, one way or the other. But my point is if the trustee in good faith is attempting to do what’s required to marshal the estate of the – of the bankrupt to determine whether claims can or cannot or should not be made, etcetera, if that’s an exercise in – or if the investigation, if I could put it that way, is an exercise in good faith of that power, well, I don’t think a court would question that – in fact, would exercise or give the trustee’s decision some deference.

Some, but not complete deference. Ultimately, the examinee’s rights are brought into account at some point?---It’s not a rubber stamp No?---No court would – would do that. But the court – it isn’t the court who investigates the affairs of the bankrupt. It’s the trustee.

87    Mr Lamer stated that an examination would be disallowed where it is oppressive or amounts to harassment: T43.9-17.

88    Mr Lamer was also challenged about his opinions in relation to an examination of Mr Daniel Roberts, but maintained that the PwC could seek to examine him under s 163(1) or to ask Milman J to so order under the liberty granted by his Lordship: T43.19-31. Mr Lamer accepted that fresh circumstances would need to be shown in any application to the court, but emphasised that it would not matter if the “trustee could have found out that Daniel Roberts did know something prior to the application being made”: T43.40-41. The following exchange then occurred in cross-examination (T43.43-44.37):

But it might matter, for example, if the trustee had told Milman J that Mr Daniel Roberts did know something about the affairs of the debtor companies, and Milman J still declined to make the order. That would be a relevant consideration, wouldn’t it?---Well, if – that’s not what Milman J said. He said there’s no evidence that Daniel Roberts has any knowledge of the affairs of the bankrupt, because he was not a director of the companies.

All right?---Well, yes, it is a ..... circumstance in the sense that, irrespective of whether he – you know, with due diligence the trustee could have found out that Daniel Roberts knew something. That doesn’t matter. It is a fresh circumstance. Now we know that he knows something, and he – the trustee is at liberty to make the decision to examine him.

All right. I don’t want to debate unnecessarily with you, but could you take up paragraph 48 of Milman Js decision?---One moment. Yes.

Can I just pause there and direct your attention to it, and raise with you that it might have been something of a slip of memory to say that Milman J found there was no evidence?---Yes. So - - -

What he found was that there was not - - -?---I see - - -

- - - a sufficient evidentiary – sorry?---Just give me one second, please.

Of course. I don’t mean to talk over you?---So we see ..... accept that the four individuals meet that description, and then it says “not sufficient evidentiary basis”. Well, maybe I have overstated it – “no evidence” – but certainly it seems – it seems the words used are “sufficient evidentiary basis”. I agree with you.

So on your view, at least, what the trustee would have to show was that there was, in fact, a sufficient evidentiary basis to justify including Mr Daniel Roberts, so to speak, on that list - - -?---That’s the – yes. That’s the decision that the judge – you have to come up with – not – “come up” is the wrong word, but you have to – you cannot examine just anyone.

Quite?---It has to be someone who has – and I think the words are “a person reasonably thought to have knowledge of the affairs of the bankrupt.”

Yes?---So you – you couldn’t say, “Well, I want to examine a secretary”, for example, unless you could demonstrate that the person in issue knows something that’s important.

89    Mr Lamer accepted that if the trustee simply proceeded on the same evidence that it had put before Milman J on the first occasion, this would give rise to an issue estoppel: T45.4-21.

90    Mr Lamer maintained that there was an ambiguity in the orders as to whether PwC only had leave to seek further examinations of the examinees that Milman J had permitted to be examined, or whether leave was also required to examine any other persons. Mr Lamer accepted that in construing and interpreting Milman J’s orders including as to whether they were permissive, it was permissible to look to his Lordship’s reasons and the application that was being determined: T46.27-47.6.

91    Mr Lamer was not otherwise challenged in respect of the balance of the opinions he expressed in his report.

4.3.3    Assessment of the expert evidence and relevant findings

92    Based on my assessment of the expert evidence, whilst I found both experts to be knowledgeable, I considered that Mr Lamer’s opinions were more reasoned by reference to applicable case law and statutory provisions than Mr Grieve KC’s opinions. In particular, I considered this to be the case in relation to Mr Lamer’s opinions as to whether second examinations were permitted by reliance upon the decision in Re Chiang and his opinions as to why the more elevated tests relied upon by Mr Grieve KC as to the quality of fresh evidence required in subsequent applications to the Court were not sound because they assumed the application of s 187(5) of the BI Act and the principles in Re Garritty.

93    I make the following findings in relation to the relevant Canadian law aspects of the dispute before me.

94    First, a trustee appointed as such under the BI Act has duties as an officer of the court and owes fiduciary duties to (at least) the bankrupt and creditors.

95    Second, the role of the trustee is inquisitorial in nature.

96    Third, consistent with its inquisitorial role, the trustee may, without an order of the court, conduct examinations of persons who it reasonably thinks has knowledge of the affairs of the debtor company, subject to relevant resolutions being passed by creditors or inspectors.

97    Fourth, if a proposed examinee is unwilling to attend an examination, an application may be made to the court to compel the examinee to do so. In determining whether such an application is to be granted, the court may impose conditions as to the number of examinees, which examinees should be examined, and the duration of those examinations. The court may refuse to order an examination where it is not satisfied that the person could reasonably be thought to have knowledge of the affairs of the debtor company.

98    Fifth, there is nothing within the BI Act that prevents a trustee from seeking a second examination of an examinee, without an order of the court. However, if such an examination is contested by the prospective examinee, it may be refused by the court where it is considered oppressive, or amounting to harassment. The court may also disallow such an examination where it is being sought merely because the trustee is dissatisfied with the earlier examination or the answers it has received. However, the Court may grant such further examinations depending on the circumstances including where the time allotted was insufficient or where other circumstances have changed.

99    Sixth, generally speaking, an order compelling or refusing examinations is not one which precludes subsequent applications being made. However, “fresh evidence” or “fresh circumstances” would need to be shown. What such evidence or circumstances would entail will depend on the particular factual context. I prefer Mr Lamer’s view that the bar is not to the elevated standards that Mr Grieve KC expressed it to be. As I have noted above, I prefer this view given that Mr Lamer based his opinion on an analysis of applicable case law, whereas Mr Grieve KC’s opinions in this respect were influenced by his related opinion that such an application on the present facts would amount to an application to vary, rescind or revise Milman J’s orders under s 187(5) of the BI Act. I also accept Mr Lamer’s opinion that if all the trustee did was to simply present the same material to the Court upon which there had been earlier rejection of the relevant examination, the Court would likely deny that application either as giving rise to an issue estoppel or on some other discretionary basis. Further, Mr Lamer’s opinion that Mr Grieve KC had adopted too high or an elevated test for “fresh circumstances” or “fresh evidence” based on the application of s 187(5) of the BI Act (and drawn from Re Garritty) was not dislodged in his cross-examination and, instead, during that cross-examination all that was established was that the nature and quality of the further evidence required would depend on the circumstances.

100    Seventh, the orders made by Milman J are to be construed by reference to the BCSC Application and his Lordship’s reasons. Based on those materials, I find that:

(a)    it was PwC that proposed that two of the examinees be examined for up to a day, and the election of Mr William Roberts as one such examinee to be examined for that duration was made by PwC;

(b)    Milman J did not specifically impose a limit on the examination of Mr William Roberts of up to one day, but expected that no more than two examinees would be examined beyond that duration;

(c)    Milman J was not satisfied that there was a sufficient evidentiary basis to conclude that Mr Daniel Roberts was a person who was “reasonably thought to have knowledge of the affairs of the bankrupt”;

(d)    Milman J ordered that “for now” the examinations would be restricted to the four examinees other than Mr Daniel Roberts and Mr Bartholomew; and

(e)    Milman J was not foreclosing any future examination of the four examines or Mr Daniel Roberts.

101    In relation to the last point, I do not accept the proper reading of Milman J’s reasons or his Lordship’s orders were to the effect that Mr Daniel Roberts could not be the subject of a future examination. Rather, as is made plain in his Lordship’s reasons, the decision that was made was based on there not being a sufficient evidentiary basis presented by the trustee at that time. This is reinforced by his Lordship’s reasons at ED [53] that the parties had leave to seek further directions following the completion of the examinations that had been ordered if they were unable to “agree on whether others are required”. Read in context, I read this part of his Lordship’s reasons as extending both to whether other examinations would be required beyond those that had been ordered, including in respect of the same or different examinees (which necessarily included Mr Daniel Roberts who had not been examined).

102    Eighth, I regard Milman J’s orders as being permissive as to leave being sought from his Lordship in respect of further or other examinations, and not imperative in this regard. I have come to this conclusion guided by the evidence of Mr Lamer supported by authority that a trustee is not precluded from seeking a second examination and on the proper constructional approach to s 163(1) of the BI Act for the reasons set out above. These were opinion with which Mr Grieve KC agreed. Further, as Milman J’s reasons only refer to leave being granted to seek “further directions”, it is not clear that his Lordship was thereby curtailing the rights of the trustee under the BI Act to make other or further applications or exercising any other right under the BI Act.

103    Ninth, I found Mr Grieve KC’s opinions as to whether PwC was “required” to go back to Milman J or the BC Supreme Court to seek further examinations of Mr William Roberts or to examine Mr Daniel Roberts, as being, in truth and in substance, expressions by him of his own professional approach to practice and procedure, as well as convention, as opposed to that opinion reflecting a matter of legal necessity. As set out above, Mr Grieve KC’s written opinion was this approach is what he considered to be “appropriate”. However, the standard of “appropriateness” is somewhat nebulous and, even if referable to some legally normative standard, it appears to be one about which reasonable minds will differ, as made plain the countervailing opinion expressed by Mr Lamer. I accept that at times during his cross-examination, Mr Grieve KC expressed his views slightly more strongly than in his written report by stating that PwC “needed to” go back to Milman J or the BC Supreme Court in circumstances where it had sought the approbation of that Court and that Court had made a determination with particular parameters and within confines. I also accept that Mr Grieve KC’s opinions in this respect were informed by his assessment of the rules applicable in courts in Canadian Provinces that appear to operate on a docket based system (not dissimilar to this Court). However, aside from not disclosing what particular court rules dictated such a course, I find that Mr Grieve KC’s opinions in this respect were more a reflection (as I have said above) of his commendable approach to the practice of law. It is a practice that accords with a professional sense of courtesy and convention that might be expected. However, Mr Lamer had a different view, but that is not to suggest that Mr Lamer’s practices are not equally commendable. Rather, it points in the direction (as to which I am satisfied) that Mr Grieve KC’s opinions in this respect do not establish a legal necessity that bound PwC as trustee to return to Milman J or the BC Supreme Court, as opposed to being a matter about which it might have been expected (but not obliged) to do so.

104    In view of the above, I am not satisfied that the Examinees have established that it was necessary for PwC to have approached Milman J or the BC Supreme Court in respect of any further examinations directed at Mr William Roberts, or any further applicant to examine Mr Daniel Roberts. As I will return to below, at least one significant matter not addressed by the parties or the experts as to why such a step was not necessary was due to the intervening circumstance of the foreign recognition orders made by Markovic J of this Court. As to this matter, neither party’s expert was asked to opine on the impact of foreign recognition of the Canadian bankruptcy proceedings in this jurisdiction as being a “foreign main proceeding” and the consequences of that legitimate and lawful step being taken to facilitate the discharge of PwC’s duties as trustee under Canadian law and by the Local Trustee Representatives as liquidators under local Australian law.

4.4    The other evidence

4.4.1    Ms Grant’s evidence

105    In seeking to establish the purpose for why the Local Trustee Representatives had sought the issues of the Summonses, reliance was placed on the evidence of Ms Grant. This evidence had been led in support of the application for foreign recognition orders before Markovic J. The specific evidence relied upon by the Local Trustee Representatives in seeking the issue of the Summonses was not put into evidence before me.

106    In her evidence, Ms Grant stated that the examinations which had been conducted in accordance with the orders made by Milman J “did not produce the level of information” that PwC required in order to finalise its investigations in respect of the affairs, property and dealings of the Debtor Companies. Ms Grant stated that there were a variety factors for these examinations not being satisfactory including that PwC was “not able to examine Mr Daniel Roberts and Mr Bartholomew, the limited time made available under the [orders of Milman J] to conduct the [e]xaminations, and the number of questions submitted by the Trustee in the [e]xaminations that were not answered by the [e]xaminees (by way of objection or otherwise)”. This evidence was general in nature, but no objection was taken to it and in fact it was included as part of the evidence that the Examinees read in support of their application to set aside the Summonses. Ms Grant proceeded to state that PwC had not obtained sufficient information from the examinees in relation to the particular matters which it wished to obtain to progress its investigations including in relation to:

(a)    the corporate structure of the IREN Group including the rationale for incorporating 27 separate entities within that Group;

(b)    the commercial rationale for causing the Debtor Companies to enter into “hashpower and hosting arrangements” with IREN and certain entities within the Group including the justification relied upon by the Debtor Companies and their directors for entering into the compensation structure set out in these arrangements;

(c)    the corporate governance protocols of the IREN Group including the processes in place for the directors of the Debtor Companies to resolve and authorise them to enter into commercial arrangements such as the “hashpower and hosting arrangements”; and

(d)    the various intercompany transactions between the Debtor Companies and certain entities within the IREN Group.

107    Ms Grant indicated that PwC considered that there was limited utility in seeking to undertake further examinations in Canada pursuant to its powers under s 163(1) of the BI Act in circumstances where the Debtor Companies do not hold any assets within that jurisdiction. Whilst Ms Grant also indicated that the investigations to date indicated that the Debtor Companies did not hold any tangible assets in Australia or elsewhere, she expressed concern that any assets the Debtor Companies may hold in Australia (about which PwC is not presently aware) may be dealt with or encumbered or otherwise diminished as a result of third party claims or actions.

108    Ms Grant explained that the only material third-party creditor was NYDIG which is owed in excess of USD$115 million excluding interest, fees and costs (being approximately AUD$174.4 million). Ms Grant stated that amongst the reasons why PwC wished to “…utilise the broader examination powers available under Australian law” was that it needed further time and assistance to ascertain and understand certain matters including questions concerning “numerous operational and structural issues involving” the Debtor Companies and that such investigations would be more appropriately progressed in Australia. PwC was concerned that, on its investigations to date, the Debtor Companies were not, and never were, generating sufficient profit to fund their financial agreements under their debt arrangements with NYDIG and were entirely reliant upon support from IREN to provide funding. Ms Grant’s view was that the Debtor Companies appeared to have been insolvent from the time that these debt arrangements had been entered into. Ms Grant explained that PwC had a legal duty under Canadian law to safeguard the assets of the Debtor Companies as best as possible and as quickly as possible.

109    As general as Ms Grant’s evidence was, I accept it. It was not the subject of challenge. In fact, as I return to below, the Examinees relied upon this evidence.

4.4.2    The evidence of Messrs William and Daniel Roberts

110    Mr William Roberts gave evidence that he attended an examination in accordance with the orders made by Milman J. This examination occurred on 5 February 2024. It took place by video conference. It lasted for approximately three hours. A transcript of the examination was annexed to his affidavit. Mr William Roberts set out the various topics that he was examined about and then deposed as follows:

14    I am not aware of any fresh circumstances or material developments in respect of the affairs of the IE CA Companies which have arisen since my examination by PwC on February 2024, save for the Primary Judgment, the Stewart J Judgment and the Leave to Appeal Judgment. I am concerned that if I am required to attend a further examination, I will be requested to answer the same questions already put to me in the examination conducted in Canada.

15     Further, I have already provided extensive cooperation to PwC outside of the examination process. For example, I have also sworn multiple affidavits in the Canadian bankruptcy proceedings which extensively outline the IE CA Companies’ financial affairs, property, dealings and causes of insolvency.

111    Mr Daniel Roberts said he was, together with Mr William Roberts, a co-founder of IREN. Mr Daniel Roberts’ relevant evidence was as follows:

9.    As set out above, PwC previously sought to publicly examine me as part of the Examination Application. However, the BC Supreme Court held that PwC had not presented a “sufficient evidentiary basis to justify” my examination: BC Examination Judgment at [48]. To my knowledge, PwC has not provided any new justifications or circumstances to support its second attempt to subject me to a public examination in relation to the affairs of the IE CA Companies (after the contested determination of its first attempt).

10     I note that, unlike some of the proposed examinees ordered by the BC Supreme Court to be made available for examination (for example William Roberts), I am not a former director of the IE CA Companies: see BC Examination Judgment at [15] and [48].

112    The Local Trustee Representatives neither objected to nor challenged the evidence of Messrs William and Daniel Roberts. Despite this, the respective views expressed by each of them as to the absence of any “fresh circumstances” is no more than that: it is their view.

113    In relation to Mr Daniel Roberts’ evidence that he was not a director of the Debtor Companies, and more generally, in order to point to new circumstances that were not before Milman J, the Local Trustee Representatives pointed to the evidence that Mr William Roberts had given in his examination. That evidence was as follows (with the objections and responses being made by respective Counsel for the parties):

Q     As co-CEO and cofounder, how were the management roles of the debtors split between yourself and Dan Roberts?

A     I'm not sure. You're asking about the debtors, are you?

Q     Yeah, I'm asking --

A     Okay.

Q     -- about the debtors.

CNSL K. SIDDALL: I think that question is confusing because you mentioned Dan Roberts.

M. GRANT: Yeah. I mentioned him just because he's co-CEO and cofounder of Iris. So I'm trying to understand --

I already asked the question.

CNSL K. SIDDALL: Okay. Well, I'm going to object in that

…

Q    Okay. What is your role with respect to the debtor, if it differs in any way than you've previously described?

A    As I mentioned, I was involved in a lot of the contracting and ongoing involvement with the debtors' business.

Q     Okay. What was your role with respect to the host you've assumed in the question that Dan Roberts had a role for the debtor companies. So ...

Q     Okay. Did Dan Roberts have a role with the debtor companies?

A     Depends how you define "role." He wasn't on the board, no. He was a CEO and director of Iris Energy Limited, which is the shareholder.

Q     Did he have management functions with respect to the debtors?

CNSL M. BUTTERY: Is he answering?

M. GRANT:

Q     We can't hear, if you're answering.

A     I'm not answering yet, sorry.

Q     Okay. It just looked like your mouth was moving.

I apologize.

A     It depends how you define "management." He was not involved in the day-to-day as much as I was.

Q     But he was involved in the day-to-day less than you were?

A     He was involved from the perspective of the Iris Energy Limited parent, and the parent had a substantial financial interest in the H [phonetic] debtor.

Q     So did he have any –

A    But, yes, he provided support from time to time.

Q     Okay. Did he have any direct involvement with the debtors?

A     He may have been involved in certain contractual discussions, including hardware purchase agreements with Bitmine and maybe some other items, but he was not as involved as I was in the general debtors' operations.

Q     Okay. I'm going to rephrase the question to try and help. What I'm trying to understand is, what was the split of roles between yourself and Dan with respect to the debtors? So you've said to me that you were more involved in the day-to-day.

I'm trying to understand what involvement Dan had that was different from yours or similar to yours.

A     I was a lot more into the data in the day-to-day operations. Dan provided support from time to time.

…

114    Reliance was also placed on the following evidence:

Q     Who else from Iris Energy participated in these discussions with NYDIG on the debt restructure?

A     Could you please be specific by what you mean by "Iris Energy"?

Q     Iris Energy Limited.

A     I recall that Daniel Roberts participated in one or more....

115    The Local Trustee Representatives submitted that this evidence indicated that Mr Daniel Roberts had knowledge of the affairs of the Debtor Companies and was to some extent involved in their management (even though not on a day to day basis), and was fresh evidence that was not available when the BCSC Application was heard by Milman J. The Examinees disputed this to be the case and pointed to the evidence of Mr Rae as indicative of the fact that materials relating to Mr Daniel Roberts’ involvement in the Debtor Companies was available from matters in the public domain.

4.4.3    The evidence of Mr Rae

116    Mr Rae set out the evidence as to the public announcements and other material in the public domain as to Mr Daniel Robert’s knowledge of or involvement in the affairs of the Debtor Companies. For example, this evidence included:

(a)    an announcement made by IREN dated 2 November 2022 which attributed statements to Mr Daniel Roberts referring to the “limited recourse equipment financing arrangements” and that they had been “deliberately structured to minimize any potential impact on the broader Group during a protracted market downturn”;

(b)    an investor update provided by IREN via webcast on 6 December 2022, which again attributed statements to Mr Daniel Roberts to the effect that IREN was only of the few companies in the industry that did not “give a parent company guarantee on [its] hardware equipment financing structures”, it was a “fantastic deal” and permitted IREN to get access to the assets, and that IREN was able to withdraw from when the market turned without any impact on the rest of the business;

(c)    a media interview given by Mr Daniel Roberts to Mr Alan Kohler (a business journalist) which was published in Intelligent Investor which attributed statements to Mr Daniel Roberts that IREN had not defaulted on any debt and that there were separate purpose vehicles that were established for the purposes of taking on equipment financing that was financed by a third party lender that are no longer able to service the debt obligations to that lender and whilst IREN owned the equity in these vehicles it was not affected by the developments.

117    Mr Rae gave unchallenged evidence that these materials were not included in the evidentiary materials that were put before Milman J. I accept Mr Rae’s evidence.

118    Despite Mr Rae’s evidence that these materials were not in evidence before Milman J, the Examinees pointed to the fact these materials were available in the public domain and did not given rise to any changed circumstances or “fresh evidence”. However, as I have set above, the Examinee’s contentions as to what “fresh evidence” would entail relied upon Mr Grieve KC’s opinion which, in turn, was derived from Mr Grieve KC’s view that an application for further examinations involved a variation or revision to the orders of Milman J under s 187(5) of the BI Act, which I do not accept.

119    Further, as I will return to below, the evidence that was before Milman J has not been put into evidence before me. This raises a question of onus. Ultimately, if the Examinees wished to assert that that there had been no change in circumstances, it was their onus to establish that fact. Whereas Milman J had concluded that there was insufficient evidence that Mr Daniel Roberts was a person “reasonably thought to have knowledge of the affairs of the bankrupt” (ED [48]), there is evidence before that Mr Daniel Roberts did have some role in the affairs of the Debtors Companies though it was not as extensive as that of Mr William Roberts and that Mr Daniel Roberts was involved in discussions with NYDIG including in relation to the debt arrangements. In relation to the latter, it would appear that, if Mr William Roberts’ evidence in his examination is true, that Mr Daniel Roberts was involved in the debt restructure discussions with NYDIG, this evidence would establish at the very least that he was a person with knowledge of the affairs of the Debtor Companies within the meaning of s 163(1) of the BI Act. This evidence was not before Milman J as the examination occurred subsequent to his Lordship’s decision.

5.    CONSIDERATION

5.1    Abuse of process and onus

120    It was not in dispute that the Court can set aside an examination summons on the ground that it amounts to an abuse of process or for other reasons: Re Newheadspace at [97] citing Palmer v Ayres [2017] HCA 5; 259 CLR 478 at [35] (in turn citing Evans v Wainter Pty Ltd [2005] FCAFC 114; 145 FCR 176 at [143]–[144], [252]) and further citing New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610 at 616 (Hayne J).

121    The onus of establishing an abuse of process or oppression is on the applicant: Re Newheadspace at [105]; Re IPO Wealth Holdings No 2 Pty Ltd (in prov liq) & Ors [2021] VSC 821 at [134] (Matthews AsJ). The onus has been described as “a heavy one”: Re Global Medical Imaging Management Ltd (in liq) [2001] NSWSC 481, [13] (Santow J).

122    An abuse of process will not be shown unless an offensive purpose is at least the predominant purpose: Re New Tel (in liq); Evans v Wainter Pty Ltd [2005] FCAFC 114; 145 FCR 176 at [143] (Lander J, Ryan and Crennan JJ agreeing).

123    The categories of abuse of process are not closed. In Walton, Edelman and Steward JJ stated at [130]:

Although the categories are not closed, the doctrine of abuse of process has conveniently, but loosely, been divided into three overlapping categories. These are: (i) the use of the court’s processes for an illegitimate purpose; (ii) the use of the court’s processes in a manner that is unjustifiably oppressive to one of the parties; and (iii) a category which might better be described as concerned with the integrity of the court and not merely its processes, and which is sometimes described as concerned with bringing the administration of justice into disrepute.

124    As noted above, and further expanded upon below, the Examinees relied upon each of the three traditional and overlapping categories of abuse of process identified in the above extract.

5.2    A principled basis for the analysis

125    The question of whether there has been an abuse of process cannot be divorced from an analysis of the function or power of the Court that is being exercised or sought to be exercised, and the aspect of the administration of justice that is in issue. In the present case, all of the ways in which the Examinees put their contentions related to the exercise of this Court’s power to issue the Summonses by which Messrs William and Daniel Roberts are to be compelled to attend examinations pursuant to ss 596A and 596B of the Corporations Act.

126    Ordinarily, the question of whether the issue of examinations summonses amounts to an abuse of process is considered by reference to whether the purpose for the holding of the coercive examinations is “foreign” to the legitimate purposes for which that power is to be used having regard to the particular context of the liquidation and/or administration of a company and not by reference to some general standard applicable in civil proceedings. As Hayne J explained in New Zealand Steel at 616:

There would be an abuse of process if the coercive powers of s 596B were to be invoked for a purpose foreign to the purposes for which those powers are conferred. …the conclusion that there has been an abuse of process does not depend upon the application of what was there described as ‘some vague notion of fairness in civil litigation’. Thus, it is not to the point to determine whether the creditor that has applied for an order for examination may (in its capacity as Plaintiff in the pending action) obtain some advantage in the prosecution of its action which is an advantage not otherwise obtainable from the interlocutory processes available to it in the action. Nor am I called on to say whether obtaining any such advantage is ‘fair’ or ‘unfair’. Such an approach would obscure the fundamental question which is whether the power is being used for a purpose foreign to the purpose for which it was given. If it is, then there is an abuse for that reason. If it is not, then no question of fairness arises; the legislature has permitted the step to be taken in such a case.

127    In the analysis of whether a purpose is foreign to the relevant statutory purpose, it must be borne in mind that there are unique circumstances that apply to a liquidation and administration, and that the role of liquidators and administrators is quintessentially investigatory in nature (it is not adversarial and is not the usual process of civil litigation). That is to recognise that powers conferred upon liquidators under the Corporations Act, and the policy underlying it, involves (as stated in Re Qintex Group Management Services Pty Ltd (in liq) [1997] 2 Qd R 91 at 94–95 (McPherson, Pincus JJA and Derrington J)):

…in the nature of things [that] liquidators when they are appointed labour under the particular disability of not knowing as much about the affairs of the company as former directors and others, and that they often cannot obtain reliable information about suspicious transactions. Generally, the only source available to them is the records of the company such as books and documents, if still available, and the information they contain is always vulnerable to contrived explanations and even to distortion by persons not anxious to disclose what they really know about events that took place when they were in charge of the company’s affairs. A plaintiff in civil proceedings is bound to prove his case and generally must do so by oral evidence. Directors and senior officers of the company in liquidation, even if they have not absconded, are often unwilling and unco-operative witnesses especially in matters in which they are the target of proceedings brought by the liquidator. Few other litigants suffer to that disadvantage, or to the same extent, as liquidators.

128    It is in this context that it is important to recognise that the Corporations Act gives liquidators rights that are not afforded to or possessed by other litigants: Re Qintex Group at 94 citing Hamilton v Oades [1989] HCA 21; 166 CLR 486 at 497. The powers under ss 596A and 596B are well known and the subject of consideration in the authorities mentioned above. It is not controversial that these powers are broad and permit an eligible person to apply for such orders to examine persons about the examinable affairs of a relevant company.

129    It is also to be recognised that the investigations conducted by liquidators are likely to be iterative and depend on the state of information obtained by a liquidator at a point in time, which, in turn, may depend on the complexity of the facts at hand and the cooperation of one or more relevant persons. It must also be steadily borne in mind that the examination process serves the public interest by enabling the liquidator to gather information which will assist in the winding up. As Austin J stated in Re Stoliar; ASIC v Suleman [2003] NSWSC 163; 44 ACSR 694 at [24]:

… a complex investigation will have many interlocking strands, and information discovered by pursuing one line of investigation may shed light on another line of investigation, making it desirable to resume that other line of investigation by recalling examinees. Additionally, if an examinee himself produces documents after the conclusion of his initial examination, further examination may be warranted in light of them.

130    Viewed in this context, the examination process serves the “public interest by enabling the liquidator to gather information which will assist in the winding up”: Suleman at [20] citing, inter alia, HongKong Bank of Australia v Murphy (1992) 28 NSWLR 512 at 519 (Gleeson CJ).

131    Thus, any analysis as to whether there is a purpose that is foreign or offensive to the exercise of powers of examination must be situated within this general context as to the purpose of those powers. That necessarily involves, first, an examination of the statutory purpose before turning, secondly, to the relevant applicant’s purpose in seeking the examination summonses. In Walton, Kiefel CJ and Keane J (albeit in dissent in the outcome) stated at [19] that:

There can be no doubt that if the predominant purpose of the examination for which an application is made under s 596A, or s 596B, is collateral or foreign to the statutory purpose of such an examination, the application will amount to an abuse of process. The appellants’ submissions do not deny this. Two purposes must therefore be considered: first, the statutory purpose, and then the applicant’s purpose in light of the statute’s purpose.

(Emphasis added.)

132    A similar point was made (at [97]) by Gageler J (as his Honour then was) that:

Invocation of a process of a court as a step in the pursuit of an ultimate purpose amounts of itself to an abuse of process only if pursuit of the ultimate purpose is “foreign to the nature of the process in question”. The question in the appeal therefore reduces to whether, and if so how, the ultimate purpose of the appellants can be said to have been foreign to the process of compulsory examination for which provision is made in Pt 5.9 of the Corporations Act.

133    Similarly, Edelman and Steward JJ stated at [131]–[132]:

Once the scope of the statute has been identified, the focus is upon whether the purpose of the litigant was outside that scope. That purpose is conceptually separate from the effect or result of the litigant’s conduct in invoking the court’s process.

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

(Emphasis added.)

134    Edelman and Steward JJ further explained at [134]–[136]:

The distinction between an immediate purpose and an ultimate purpose can be confusing because “ultimate purpose”, in the sense of motive, can be what underlies “immediate purpose”, in the sense of the means and ends to be achieved. The distinction can also distract from the central question, which is whether the litigant’s predominant purpose, in the sense of the end to be achieved and the means by which that end will be achieved, is inconsistent with the express or implied scope of the court’s process. The terminology of a litigant’s purpose should therefore be understood to mean both the end which the litigant seeks to achieve and the means by which they will do so.

A better way of expressing the first category of abuse of process is therefore simply to ask whether the predominant means adopted and ends to be achieved by a litigant (in other words, the litigant’s purpose) are inconsistent with the express or implied scope of the legal process.

Where the legal process is statutory, if the purpose of the litigant is consistent with the scope of the legislation then it will not usually matter whether the litigant has some ulterior motive. After the identification of the litigant’s predominant means and ends, the question that is “implicit in, indeed at the very heart of, that process” is to ask whether the “scope and purpose of the statute” will be contradicted or stultified (215).

In cases of statutory processes, once the purpose of the litigant has been identified, the existence of the first category of abuse of process may often depend upon the degree of generality at which the legislative scope and purpose is identified.

135    Edelman and Steward JJ concluded their analysis as to illegitimate purpose by observing at [137] that:

Although the scope and purpose of a statute can be identified in a manner that is generally applicable, the existence of the first category of abuse of process might depend greatly upon the particular facts and circumstances of an individual case. It would be a fool’s errand to attempt to chart the legitimacy of an almost infinite variety of purposes – means and ends – for which a litigant might seek to invoke the statutory process. Each case should be assessed on its own facts and circumstances in light of the statutory scope and purpose.

136    As is apparent from each of these statements of principle, any examination of illegitimate purpose must start with an examination of the process in question and, where it is statutory, the relevant question will be whether the purpose for the invocation of that process is within the scope and purpose of that statutory power.

137    In view of the abovementioned principles, there are four observations to be made.

138    First, it is necessary to observe that the relevant abuse of process relates to the processes of this Court, not the BC Supreme Court. The question before me is not whether the conduct of PwC or the Local Trustee Representatives is an abuse of process of the BC Supreme Court.

139    Second, in examining the statutory process in issue, it is important to recognise the specific context within which this Court has exercised its jurisdiction and power to compel the Examinees to be examined pursuant to ss 596A and 596B of the Corporations Act. The jurisdiction of this Court was enlivened by reason of the orders made by Markovic J pursuant to Art 17 of the Model Law (as contained in Sch 1 to the CBI Act). The force of those orders was to recognise the bankruptcies commenced in respect of the Debtor Companies in British Columbia, Canada (Vancouver Registry Action No. 230488) as not only a “foreign proceeding” but also as a “foreign main proceeding” within the meaning of the Model Law, and to recognise the Local Trustee Representatives as the representatives of PwC. Markovic J made a specific order that:

6.    Pursuant to Art 21(1)(g) of the Model Law, the Local Representatives be invested with all powers available to a liquidator of a corporation appointed under the provisions of the Corporations Act 2001 (Cth).

7.    Pursuant to Art 21(1)(d) and 21(1)(g) of the Model Law, the Local Representatives may, as they deem appropriate, examine witnesses, take evidence or require the delivery of information concerning each of the defendants’ affairs, rights, obligations or liabilities as if the Local Representatives were liquidators appointed to the relevant defendant under Pt 5.4B of the Corporations Act.

140    The effect of the orders recognising the “foreign main proceeding” and the empowering of the Local Trustee Representatives as liquidators appointed under Pt 5.4B of the Corporations Act was to “enable use of the powers in the recognising jurisdiction to assist the foreign insolvency proceeding”: RD [94]. As a result, this Court, as the recognising court, “acts as an adjunct of the foreign insolvency court where the main proceeding is conducted”: RD [94], Markovic J adopting the words of Allsop CJ in Akers v Deputy Cmr of Taxation [2014] FCAFC 57; 223 FCR 8 at [111]–[114] (Robertson and Griffiths JJ agreeing).

141    The Examinee’s submissions ignored the important contextual fact of the foreign main proceedings being recognised in this jurisdiction and the recognition of the Local Trustee Representatives as liquidators for the purposes of the Corporations Act. These contextual matters were, and are, essential to an examination as to purpose, including illegitimate purpose. In counter to this, the Examinees submitted that it was amongst the reasons that they had opposed foreign recognition in this jurisdiction that they claimed and/or feared that there would be an abuse or process in PwC seeking to circumvent Milman J’s orders by pursuing compulsory examinations in this jurisdiction. Further, the Examinees contended that in previous decisions, this Court had specifically stated that their concerns as to abuse of process were premature and could be taken up upon being served with examination summonses. To this end, the Examinees pointed to Stewart J’s reasons in the Stay Decision at [24]–[25] that:

In my view the stay sought before me by Iris is both premature and too broad. It is premature because in the event that an examination summons is issued and served, and any order for production under it or the examination itself is likely to bite before the proposed appeal is decided, the examinee (or possibly even Iris) can at that time seek an appropriate remedy — discharging or staying the summons. It is too broad because it would prevent all examinations, even those which may not create any particular or specific prejudice to Iris, and even of people who are not officers of Iris.

Iris seeks to counter each of those propositions. In relation to its application being premature, Mr Giles submits that Iris would not be able to run an abuse of process argument in support of the discharge of an examination summons or the stay of an examination because that question has already been decided by Markovic J. I do not accept that. Her Honour expressly recognised that a proposed examinee would have a right to be heard on, or to seek to discharge, any examination order. Her Honour decided that the application for recognition and for the power to apply to conduct examinations is not an abuse of process, but her Honour did not decide that any particular examination — whether as to the individual examinee, the subject(s) to be canvassed, particular questions to be asked, the timing or the documents to be produced — is not or would not be an abuse of process. Her Honour clearly contemplated that the proper time to raise such issues is when a particular examination summons is issued and served (J[130]).

(Emphasis added.)

142    The Examinees also pointed to the Full Court’s reasons at [38] of the Full Court Decision that:

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

143    As I return to below, I do not accept that by any of these statements, either Stewart J or the Full Court did any more than indicate that the Examinees would have a right to be heard as to whether examination summonses should be set aside at some point in the future, if and when they were served with them.

144    Third, as already touched upon, and more directly, it is also necessary to recognise the legitimate purposes for the issue of examination summonses. In the oft-cited decision in Re New Tel, Lander J held at [252] (Ryan and Crennan JJ agreeing) that:

…

3.     The following legitimate purposes emerge:

3.1     First, an examination is designed to serve the purpose of enabling an eligible applicant to gather information to assist the eligible applicant in the administration of the corporation.

3.2     Secondly, it assists the corporation’s administrators to identify the corporation’s assets, both tangible and intangible. It also allows the corporations liabilities to be identified.

3.3     Thirdly, the purpose is to protect the interests of the corporation’s creditors.

3.4     Fourthly, it serves the purpose of enabling evidence and information to be obtained to support the bringing of proceedings against examinable officers and other persons in connection with the examinable affairs of the corporation.

3.5     Fifthly, it assists in the regulation of corporations by providing a public forum for the examination of examinable officers of corporations.

4.     If an eligible applicant applies for an order for the examination of a person for a purpose unconnected with the purposes authorised by the legislation that will be an abuse of process and the order, if obtained, will be set aside.

5.     The procedure may not be used to allow a party to obtain a forensic advantage and, if it is, any order obtained will be set aside.

6.     The procedure may not be used as a dress rehearsal for the cross-examination of a person in a pending or subsequent action. However, it is not improper to seek an order of the court to summon a person for examination whilst litigation is pending against that person or entities connected with that person.

7.     The question whether in any particular case the applicant has used the procedure abusively will depend upon the applicant’s purpose in seeking the order and all of the surrounding circumstances. It will not be an abuse unless an offensive purpose is at least the predominant purpose.

145    Fourth, as also noted above, the specific purposes of examination summonses are also not to be divorced from the context that by the orders made by Markovic J, the Local Trustee Representatives are liquidators of the Debtor Companies under Pt 5.4B of the Corporations Act. The powers of liquidators are unique. Those powers may be exercised in an iterative process of investigation and inquiry.

146    It is necessary to bear these matters in mind in the determination of the Examinee’s contentions.

5.3    Abuse of process not established

5.3.1    The first contention – improper purpose

147    The Examinee’s first contention was that the purpose of PwC and the Local Trustee Representatives in seeking the issue of the Summonses and holding the examinations was to “circumvent” the restrictions that PwC faced in Canada as a result of the orders made by and reasons of Milman J. In the way that the argument was developed, the Examinees submitted that the conduct of PwC and the Local Trustee Representatives circumvented the orders of Milman J or was at least inappropriate because it was inconsistent with the spirt and tenor of his Lordship’s reasons.

148    I do not accept these contentions.

149    First, there is evidence as to the lawful and legitimate purposes for which the Summonses have been issued. It is to be borne in mind that the issue at stake here is abuse of this Court’s processes under Australian law. As explained above, invocation by a liquidator of the statutory process of examination is ordinarily a legitimate step taken in the investigation of the examinable affairs of a company in liquidation. The unchallenged evidence of Ms Grant (which was the only evidence before me as to the purpose of PwC and the Local Trustee Representatives), is that the intention in seeking to issue the Summonses was to procure examinations to progress investigations in relation to the conduct and affairs of the Debtor Companies in relation to two persons, one of whom is a director of the Debtor Companies (Mr William Roberts) and the other who, on the evidence before me, is a person who appears to have been involved in, or has had knowledge of, the affairs of those Companies by reason of his role in the IREN Group and his particular involvement in the Debtor Companies as set out in the evidence given by Mr William Roberts during his examination to date.

150    Ms Grant’s evidence was that the examinations conducted to date have not produced the level of information that PwC requires to finalise its investigations into the affairs, property and dealings of the Debtor Companies, and she considered that there was limited utility in pursuing examinations in Canada. Ms Grant’s evidence in this respect is entirely unsurprising given that the Examinees are based and reside in Australia, IREN is a company incorporated in Australia, and IREN appears to be the holding company of the Group of which the Debtor Companies are a part, and, in respect of whom, Ms Grant has evidence indicating that they may have been insolvent from the outset.

151    Thus, the unchallenged evidence of Ms Grant is that the purpose, including the immediate purpose, of the invocation of the statutory process is for the legitimate and lawful purpose of conducting an investigation into the examinable affairs of the Debtor Companies. That purpose is to be viewed in the context that Ms Grant’s evidence is that this is being done to discharge PwC’s duties as a trustee in the foreign main proceedings in Canada. That is consistent with the fact that, by reason of the foreign recognition orders that have been made, the steps being taken locally in Australia are an adjunct to and in facilitation of the administration of the relevant bankrupt estates in those foreign proceedings.

152    The fact that lawful and legitimate purposes exist weighs against the conclusion that there is an improper purpose as alleged by the Examinees. As noted above, an abuse of process will not be shown unless an offensive purpose is at least the predominant purpose: Re New Tel at [143].

153    During the course of oral argument, an issue was raised that the Local Trustee Representatives had not put into evidence before me, the particular evidence upon which they had relied in seeking the issue of the Summonses under ss 596A and 596B of the Corporations Act. Whilst there was an absence of this evidence, Ms Grant’s evidence nevertheless addressed the question of purpose. In fact, the Examinees relied upon Ms Grant’s purposes to demonstrate, on their contention, that there were improper purposes at play.

154    Second, relatedly to the first point, the invocation of that statutory process has to be viewed in the context that the very purpose of the foreign recognition orders was to facilitate and assist in the administration of the bankrupt estates of the Debtor Companies including for the benefit of creditors. Far from being a step taken to circumvent in a general sense the foreign main proceedings, I am satisfied on the basis of Ms Grant’s evidence that the purpose of seeking to hold examinations is to further the ends of those foreign main proceedings.

155    Third, the Examinees have not discharged their onus to establish that the effect of the Summonses does, or would, circumvent the orders of Milman J or is against the spirit or tenor of his Lordship’s reasons, let alone give rise to any inconsistency with the discharge of PwC’s duties as a trustee under the BI Act.

156    As set out above, both the experts accepted that s 163(1) of the BI Act empowered PwC in its inquisitorial role as trustee to conduct further examinations, without any order of the Court. An application to the BC Supreme Court would become necessary if the examinees were unwilling to attend the examinations. However, the fact that the trustee could exercise such a right whether by application to the BC Supreme Court or otherwise tends against the conclusion that PwC’s conduct was in some way inconsistent with its duties. On the force of the expert evidence and the conclusions I have reached about it (as set out above), I am satisfied that the pursuit of an application to conduct a further examination of Mr William Roberts or the making of another application to examine Mr Daniel Roberts is not of itself an illegitimate exercise of PwC’s powers, or inconsistent with its duties, as a trustee. Although not identical to the position in Australia, PwC’s role as trustee is an inquisitorial one to conduct examinations and investigations for the benefit of the estate and its creditors. Viewed in that context, it is consistent with the discharge of PwC’s role for it to seek to conduct further or other examinations. The agreed position between the experts was that a trustee can conduct a second examination or apply again to examine a person where that examination has previously been disallowed, subject to, if necessary, establishing to the satisfaction of a relevant court that there are changed circumstances.

157    Further, both experts accepted that the orders made by Milman J were ambiguous. In any event, as noted above, I do not accept that the orders made by Milman J had the effect of curtailing PwC’s right to seek further examination of Mr William Roberts or to seek again to examine Mr Daniel Roberts. Whilst Mr Grieve KC’s opinion that it would have been appropriate or necessary to return to Milman J or the BC Supreme Court reflects his personal professional practice, I weigh against that the fact that Mr Lamer did not consider this to be necessary or his professional practice. As set out above, Mr Lamer expressed the view, which I accept, that it was only one option for PwC to approach the BC Supreme Court seeking an order for further examinations. Its other option was simply to exercise again its right under s 163(1). I do not repeat here again the conclusions I have reached above as to these matters.

158    The Examinees submitted that Ms Grant’s evidence persuasively established that PwC’s intention and purpose was to directly do that which Milman J had ordered could not be done. The Examinees pointed out that in her substantive affidavit at [50], Ms Grant stated that further examinations were required because of the “limited time made available under” Milman J’s orders and the fact that it was unable to examine Mr Daniel Roberts. It was submitted that these purposes demonstrated that the Summonses were nothing more than an attempt to circumvent Milman J’s orders. I do not accept that contention. It assumes that Milman J’s orders had the effect of foreclosing any further or future applications being made for further or other examinations. For the reasons set out above, I do not accept that this was the effect of the orders made by Milman J and, further, it is inconsistent with the fact that Milman J permissively granted leave for the parties to seek further directions if they were unable to agree as to “other” examinations.

159    That then left the Examinees’ contention that, even if PwC was permitted to seek further or other examinations, it was nevertheless “required” in the first instance to return or should have returned, to Milman J or the BC Supreme Court to seek such orders. This argument too can be rejected on the basis of the findings I have made above. In short, I do not accept that this was the effect of the orders made by Milman J, though I accept that some professionals such as Mr Grieve KC may considered that to be the appropriate course.

160    Fourth, I do not accept that the conduct of PwC or the Local Representative Trustees is against the tenor or spirit of Milman J’s orders and reasons, even if those orders did not compel a particular course as a matter of legal obligation. That is because the Examinee’s contentions in this respect disregarded that there has since been a critical development. That critical development was the foreign recognition proceedings and by reason of which the Local Representative Trustees have been recognised as liquidators under the Corporations Act, with the purpose being to facilitate the foreign main proceedings. Although PwC has not returned to Milman J or the BC Supreme Court, they have exercised a legitimate and lawful right to seek via the Local Representative Trustees orders from this Court to the same effect. The Examinees have had a right to be heard about whether the relevant examination orders should be set aside. They have elected to do so on a particular basis.

161    As referred to above, in my view, nothing in the Stay Decision or the Full Court Decision assured the Examinees success on any application that would be made to set aside the Summonses if and when they were issued. The point in issue in the Stay Proceedings was whether there was any prejudice to the Examinees or IREN and it was said that it was premature as they would have a right to seek to set aside Summonses. The point in issue in the appeal was whether there were sufficient grounds to warrant leave to appeal being granted in circumstances where Markovic J concluded that it was not relevantly contrary to the public interest under the CBI Act and the Model Law for there to be foreign recognition in this jurisdiction. The Full Court concluded that this conclusion did not have sufficient doubt so as to grant leave to appeal, and, further, in any event, no substantial prejudice would arise from the refusal of leave in circumstances where the Examinees could seek to set aside any examination summonses in the future if they were issued.

162    As things have to come pass, the Summonses were issued. The Examinees have applied for them to be set aside. And, I have reached the conclusion that they are not an abuse of process.

163    Fifth, I do not accept the express or implied premise in the Examinee’s contentions that the Local Trustee Representatives have not shown that there are circumstances that exist now that would warrant the further examination of Mr William Roberts, or the examination of Mr Daniel Roberts. As noted above, I do not accept Mr Grieve KC’s evidence as to the nature or quality of evidence that would have been required under Canadian law to establish changed circumstances or fresh evidence, etc. I have preferred and accepted Mr Lamer’s evidence in this regard. Putting that to one side, on the evidence before me, including from Mr Rae, it is apparent that certain evidentiary material was not put before Milman J as to Mr Daniel Roberts’ role with the Debtor Companies or his knowledge of their affairs. There is now further evidence that was not available before as to what Mr William Roberts has said about Mr Daniel Roberts’ role and involvement in the affairs of the Debtor Companies, or his knowledge as to their relevant affairs including their debt financing arrangements with NYDIG and their restructure. There is also Ms Grant’s evidence that more questions need to be asked because of the limited time that was granted in the earlier examinations. I am satisfied that these reasons are legitimate and lawful reasons for seeking to now contend that there should be a further examination of Mr William Roberts and an examination of Mr Daniel Roberts. Again, I do not view this as being inconsistent with the spirit or tenor of Milman J’s orders, especially given that (for the reasons stated above) his Lordship had in mind that the parties could seek leave to be heard as to further or other examinations. The fact that Milman J had stated that he would not permit an examination of Mr Daniel Roberts “for now” indicated the possibility that this question could be re-visited, which is consistent with that which has now occurred, albeit in a different jurisdiction.

164    I am fortified in coming to these conclusions that a process of liquidation is an iterative process. It appears that the same position prevails under Canadian law.

165    Returning to the question of improper purpose, I am not satisfied that the Examinees have discharged their onus of establishing that the purpose for the Summonses is foreign to or outside the scope of the statutory purpose in play here. The principles drawn from Walton (supra) require such an analysis to start with statutory purpose and then to weigh the immediate purpose of the proponent for the examination summonses as against that statutory purpose. For the reasons stated above, I am not satisfied that the Examinees have established that PwC’s or the Local Representative Trustee’s purpose(s) are outside or foreign to the statutory purposes of examinations under ss 596A and 596B, especially viewed in the context of the statutory purpose to be served by the liquidation here proceeding as an adjunct to and in facilitation of the foreign main proceedings. Nor am I satisfied that the Examinees have established any improper purpose.

5.3.2    The second contention – oppression     

166    The Examinees’ second contention was that the Summonses should be set aside on the basis that they are oppressive. The argument was put in two ways. First, it was said that Mr William Roberts had already been examined and that Mr Daniel Roberts had already succeeded in not being examined. Second, it was said that it is generally oppressive for Messrs William and Daniel Roberts to be confronted with parallel or similar proceedings in which precisely the same or similar relief was being sought (ie, examinations) in circumstances where these matters had already been litigated, and the Examinees had obtained a successful outcome.

167    I do not accept these contentions.

168    The fact that Mr William Roberts had already been examined did not stand in the way of him being examined again, either by a further exercise of a right under s 163(1) or by further order of the BC Supreme Court, or by this Court by reason of foreign recognition. Aside from submitting that Mr William Roberts does not wish to be asked questions again, nothing by way of substance was put to demonstrate any particular oppression that would be sheeted home to Mr William Roberts by way of further examination. As noted above, Mr William Roberts has been examined for approximately three hours. That was far less than period of up to a day which was contemplated. Further, as noted above, both the experts accepted that s 163(1) did not preclude a second examination of Mr William Roberts, subject to their respective views as to what would need to be shown about changed circumstances. I am not satisfied in those circumstances that any particular oppression has been established.

169    The fact that Mr Daniel Roberts was successful, together with IREN, in resisting examination orders in Canada does not establish oppression of itself by reason of the present summons issued to him. As noted above, Milman J’s reasons at ED [48] were expressed on the basis that his Lordship was not satisfied that Mr Daniel Roberts should be examined on the state of the evidence before him, and that he would not compel an examination “for now”. Again, both the experts accepted that s 163(1) did not preclude a further application being made to examine Mr William Roberts, subject to their respective views as to what would need to be shown about changed circumstances.

170    The Examinee’s contentions assumed that the principle in Henry v Henry applied to these circumstances. For the reasons stated in the preceding two paragraphs, I do not accept that the proper characterisation of Milman J’s orders was to shut out any further application being made to examine Mr William Roberts on a second occasion, or to make a further application to examine Mr Daniel Roberts. Thus, the question of whether they should be examined further, or at all, has not been determined by Milman J. I accept, as Mr Lamer opined that, if all that PwC wished to do was examine again on the basis of no change in circumstances, then, questions would arise as to issue estoppel. However, that is not what PwC and the Local Trustee Representatives are seeking to do.

171    As I do not accept essential premises in the Examinee’s contentions, I do not accept the Examinees have established oppression in the way they put that argument.

5.3.3    The third contention – bringing the administration of justice into disrepute

172    The third contention added little else to the first and second contentions and I reject it on the same basis. In view of the pressing urgency, it would labour on repetition for me to set out all the reasons again that I have set out above.

6.    POSTSCRIPT AND CONCLUDING OBSERVATIONS

173    During the course of the hearing, I was informed that the Examinees had made an application to Milman J, not for an anti-suit injunction, but in the nature of a ruling seeking to, in substance, restrain the trustee from acting on the Summonses. I was not informed about the details of that application and both parties proceeded on the basis that I did not need to know about it during the hearing. However, I was informed during the hearing that this application was being heard before Milman J late in the evening of 11 June 2025 (after the hearing before me had concluded).

174    On the morning of 12 June 2025, through my Associate, I made enquiry of the parties as to whether Milman J had made any interim or other orders. I was eventually informed that Milman J had reserved his decision, but had indicated that he was hopeful of making orders at 9.30am this Friday morning, or 2.30am on Saturday, 14 June 2025 (AEST). I held a case management hearing late on the afternoon of 12 June 2025 (which was arranged at a time when I had not received a substantive response to my enquiry). At that case management hearing, I invited the parties to inform me what their respective positions were in light of these developments including whether I should receive further information about the proceedings before Milman J including the transcript of that hearing. I was anxious that, as a matter of bilateral judicial comity, and particularly in the context where the current proceedings are to be viewed as an adjunct to and in facilitation of the foreign main proceedings, this Court was made aware of what was occurring in the BC Supreme Court and vice-versa.

175    The Local Trustee Representatives took the position that the developments in the BC Supreme Court were irrelevant to the issues before me. The Local Trustee Representatives further stated their position that I should proceed to determine the matter before me as quickly as possible.

176    The Examinees took an agnostic position as to me being informed of the developments in the BC Supreme Court, but their Senior Counsel considered it was appropriate that I receive some information about the matter before the BC Supreme Court and in particular the transcript. However, I was informed that there could be delays in receiving the transcript. Otherwise, the Examinees suggested that it would be wise for me to defer judgment until Milman J had made a determination.

177    I do not accept that I should defer my determination. As it happens, I commenced writing these reasons immediately after the conclusion of the hearing before me. By late yesterday afternoon, these reasons were well advanced but not yet complete. Substantial judicial time has been taken up in hearing and determining this matter. It is at the expense of other litigants. Further, I am also conscious that Judicial Registrar Schmidt is to travel from Queensland to Sydney to conduct the examinations that are scheduled to commence this coming Monday. There are at present pending allegations that there has been an abuse of process of this Court. Irrespective of the outcome of the application made in the BC Supreme Court before Milman J, it is in the public interest that there be a determination whether there has been an abuse of process of this Court.

178    Having said all of this, it merits observation that I did not consider the position taken by the Local Trustee Representatives as being consistent with the objects of the Model Law. The preamble to the Model Law provides as follows:

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

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

…

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

…

(Emphasis added.)

179    To these objects may be added, Art 18 (which deals with foreign representative information the court promptly of any substantial changes in the status of the foreign proceedings) and Chapter IV which deals with various provisions for cooperation between foreign courts and foreign representatives. Even if none of these particular provisions apply to the position that presently prevails, I would have expected to be kept informed of developments even if not directly relevant to any issue that I needed to determine.

180    I am conscious that a colleague judge of a superior court of record in Canada too has had his time and effort called upon at short notice to determine a matter of complexity by reason of the position and counter position taken by the parties to this application. It is a most regrettable state of affairs for the facilitation of the ethos of the Model Law. If these proceedings are to remain in my docket, I expect the parties to address me as to the process of cooperation provided for in the Model Law to facilitate what is intended to be seamless assistance that the Model Law aspires toward.

Associate:

Dated:    13 June 2025