Federal Court of Australia

Gidley, in the matter of Steel City Formwork (in liquidation) [2025] FCA 739

ORDERS

THE COURT ORDERS THAT:

1.    The time limited by r 3.11(2) of the Federal Court Rules 2011 (Cth) for filing the application under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) to review the Registrar’s exercise of power of the Court on 26 November 2024, be extended to the day after the filing of the applicant’s Interlocutory Application.

2.    The application be dismissed, with costs.

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

REASONS FOR JUDGMENT

YOUNAN J:

1    The interlocutory application is made under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), seeking review of the Registrar’s orders on 26 November 2024 for production of certain documents (the Orders).

2    The Application is made in the context of an examination under s 597 of the Corporations Act 2001 (Cth), presently scheduled for 29 July 2025.

3    The orders in contention are paragraphs 3, 6 and 7 of sch 2 to the Orders, which the applicant is seeking to set aside (noting that there is no express power to set aside an order for production made under r 30.34 of the Federal Court Rules 2011 (Cth)). The question for the purposes of s 35A(5) remains one of the proper exercise of the power to order production.

1.    BACKGROUND

4    On 18 November 2024, the liquidator (Mr Paul Gidley) filed an originating process under ss 569A and 569B of the Corporations Act, seeking orders for production of documents and summons for examination in relation to the “examinable affairs” of the companies in liquidation to be issued to a number of people, including the applicant (Mr Douglas Crane).

5    The liquidator sought a summons for the examination of Mr Crane pursuant to s 596B of the Corporations Act.

6    Mr Crane is the managing director of Oakdale Group Pty Ltd, a company that provides specialised concrete framework systems for use on large construction projects. Until the appointment of the liquidator of the companies in liquidation (Steel City Formwork Pty Ltd and Newcastle Formwork Pty Ltd), Oakdale used both companies, amongst others, to supply subcontract labour.

2.    GROUNDS OF THE APPLICATION

7    On 26 November 2024, the Registrar made the Orders, requiring the applicant to produce documents to the Court. By an amended interlocutory process, dated 1 July 2025, the applicant challenges the orders insofar as they apply to the following documents:

(1)    Copies of the applicant’s income tax returns and income tax assessment for the financial years ending 30 June 2015 to date (paragraph 3 of sch 2);

(2)    Copies of all bank statements in respect of any current bank loans made to the applicant solely or jointly with another person (paragraph 6 of sch 2); and

(3)    Copies of bank statements for any other bank account of the applicant held solely or jointly with another person from 23 December 2015 to date (paragraph 7 of sch 2).

8    The applicant contends that there is no apparent nexus between the documents sought by the liquidator and the purpose of the forthcoming examination of Mr Crane.

3.    THRESHOLD ISSUE: EXTENSION OF TIME

9    The initial relief sought by the applicant is an extension of time for the filing of the interlocutory application. Rule 3.11(2) of the Rules provides that the application for review of the Registrar’s exercise of power should have been made 21 days after the day on which the power was exercised (viz., 26 November 2024).

10    The interlocutory process was lodged for filing on 16 April 2025, and accepted for filing on 2 May 2025.

11    The applicant states that the order for production was served on his solicitors on 6 March 2025. That is not in dispute. The liquidator accepts that there was a delay in service of the Orders.

12    The applicant’s counsel submitted that there were further discussions between the parties’ solicitors, accounting for the time by which the application was ultimately made (some 6 weeks after service).

13    The liquidator makes no submission as to any prejudice caused by the delay.

14    This is a threshold issue. In the absence of satisfaction that time should be extended so as to allow the application to be made (or that I should dispense with the rule under r 1.34 of the Rules), the application for relief to set aside the Orders is not properly before me, i.e., it does not call for consideration.

15    However, the threshold issue is also informed by the merits of the substantive application to set aside the Registrar’s orders.

4.    REVIEW OF THE REGISTRAR’S EXERCISE OF POWER

16    In the present case, the applicant seeks to review the Registrar’s order for production of documents:

(1)    issued upon application made ex parte by the liquidator (claiming orders for production and a summons for examination of Mr Crane pursuant to s 598B of the Corporations Act);

(2)    supported by a confidential affidavit sworn by the liquidator and filed as contemplated by s 598C – i.e., in circumstances where it is not available for inspection except so far as the Court orders;

(3)    in circumstances where the proposed examinee did not have a right to be heard;

(4)    without requesting access to the liquidator’s affidavit pursuant to s 596C(2); and

(5)    without applying for an order discharging the summons for examination.

17    This is significant in circumstances where:

(1)    the applicant mounts his challenge of the Orders on the basis that the liquidator has not (in this proceeding and for the purpose of this application) provided any evidence to substantiate a purpose for the production of the documents identified in paragraphs 3, 6 and 7 of sch 2 of the Orders or their relevance to the “examinable affairs” of the companies in liquidation; and

(2)    the applicant accepts that the purpose of his examination is reasonable (without identifying that purpose, other than to point to the demonstrated business relationship between the applicant as managing director of Oakdale and the companies in liquidation).

18    The applicant accepts that the liquidator is under no obligation to produce the confidential affidavit that was before the Registrar in making the order for production, but that his application challenging that order calls for the liquidator to identify the purpose of the examination, and to demonstrate the nexus between that purpose and the documents sought.

19    In so proceeding, the applicant:

(1)    stymies the liquidator from meeting the applicant’s challenge. It is not evident how the liquidator is to demonstrate the purpose of the examination without revealing the contents of the confidential affidavit;

(2)    denies the Court’s access, in reviewing the exercise of power, to the whole of the material upon which the exercise was based (which is significant in assessing the nexus that the applicant claims is elusive); and

(3)    effectively reverses the onus that falls upon the applicant to demonstrate a “positive case for interference”, thus placing the evidentiary burden on the liquidator (see Wily, Re LED (South Coast) Pty Ltd [2009] NSWSC 946; (2009) 74 ACSR 145 at [27]–[29]).

20    In the absence of the confidential affidavit and any additional evidence adduced by the liquidator — noting that it is not incumbent on the liquidator to produce this evidence — the Court is left with the evidence in Mr Crane’s affidavit of 17 April 2025. As the liquidator submitted, that evidence does not make a positive case for interference.

21    Rather, the applicant contends that the documents sought could not possibly be relevant to the purpose of the examination. The liquidator submits the contrary: i.e., that they obviously could be. Again, the purpose of the examination is not identified; only the circumstance of the applicant’s business relationship with the companies in liquidation is proffered as the realm in which the current review must take place.

22    Therefore, the question is whether, in reviewing the Registrar’s exercise of the power to make orders for production, I consider that the impugned orders, on their face, warrant being set-aside (subs 35A(1)(c) and (h) of the FCA Act; r 30.34 of the Rules). In my view, they do not.

23    First, it is within the Court’s power to order, in advance of examination, the production of tax returns, notices of assessment, and bank statements of an examinee where those documents are sought over the entire period of the company’s existence (Newcastle Formwork Pty Ltd and Steel City Formwork Pty Ltd were registered in 2015 and 2021, respectively), and even where the examinee is not an officer of the company: see Cathro in the matter of Lidcombe Plastering Services Pty Limited (in liq) [2018] FCA 1138 at [25].

24    Second, there is evidence of a relationship between the applicant (as managing director of Oakdale) and the companies prior to liquidation. As such, it cannot be said that the information contained in the documents sought pursuant to paragraphs 3, 6 and 7 could not have any relevance to the purpose of examining Mr Crane under s 597. This is noting that there is no evidence of that purpose, but that the power to summons a person for examination under s 596B is referable to a corporation’s “examinable affairs”, defined broadly in ss 9 and 53 of the Corporations Act, and that the production of documents is ancillary to the process of examination: Re BPTC Ltd (in liq) (No 5) (1993) 10 ACSR 756 at 763. It cannot be said (or, more importantly, demonstrated) by the applicant that the documents sought are not required for the examination, or that they are sought for a purpose of obtaining information independently of the applicant’s examination, and are therefore in excess of the power: see Re BPTC at 763 and 766.

25    Third, the liquidator proposes to limit the period of production to the last five years, lending further moderation to the scope of the Orders: see Re BPTC at 767. In that regard, I would not “set aside” the Orders, but note the liquidator’s concession and the revised scope of sch 2 of the Orders (as qualified in paragraph 2 of the liquidator’s submissions, dated 30 June 2025), on which my decision is based. My task is not exhausted by concluding that a particular order should not have been made in the terms in which it was made. I address the discretionary question whether an order ought to have been made: see Re BPTC at 768.

26    Fourth, I do not accept the applicant’s submission that the exercise of power is oppressive, by reference to the scope or subject-matter of the Orders. The applicant’s submission that there is no demonstrated connection between his “personal affairs” (by reference to his financial accounts and statements) and the “examinable affairs” of the companies, involves an assumption. The assumption is one of the characterisation of matters that involve the applicant as “personal” and therefore not “examinable”. The two are not antithetical. There may be a public interest in the disclosure of information which might otherwise intrude on the private affairs of individuals: Pitman v Park (liquidator), in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887 at [48]. As such, intrusion on “personal affairs” is not a sound objection to production.

5.    CONCLUSION

27    As the initial delay in bringing this interlocutory application is explained, and the liquidator has made some concession in reducing the scope of the documents for production, which may speak to the utility of the application, I grant leave pursuant to r 1.39 of the Rules to extend the time for filing the application to the day after the application was accepted for filing.

28    Otherwise, I dismiss the application, with costs.

Associate:

Dated: 3 July 2025