FEDERAL COURT OF AUSTRALIA

Elks, in the matter of Moreton Resources Limited (Receivers Appointed) [2025] FCA 1670

ORDERS

THE COURT ORDERS THAT:

1.    The time limited by the Federal Court Rules 2011 (Cth) (FCR) for the making of an application to review or discharge the Orders of the Registrar made on 8 and 9 January 2025 be extended to the day after the filing of each Applicant's application.

2.    Order 2 of the Orders made on 8 January 2025 by the Registrar that the persons therein identified (except for sub-paragraph (h), being Brent van Staden) attend the Court to be examined pursuant to s 596B of the Corporations Act 2001 (Cth) (the Act), be set aside.

3.    The examination summonses issued pursuant to s 596B of the Act to:

(a)    Brett Garland;

(b)    Phillip Bryant;

(c)    Philip Anthony Feitelson;

(d)    Lois May Bullen;

(e)    Glen Walter Williams;

(f)    John Kevin Haley; and

(g)    Tristan Garthe

be discharged.

4.    The Order made on 9 January 2025 by the Registrar directing those identified in sub-paragraphs (a) to (k) and (o) to (r) of that Order, to produce certain books and records, be set aside.

5.    The Orders made on 9 January 2025 pursuant to r 30.34 of the FCR by the Registrar to produce documents or things specified in the Annexure, issued to:

(a)    Brett Garland;

(b)    Phillip Bryant;

(c)    Philip Anthony Feitelson;

(d)    Lois May Bullen;

(e)    Glen Walter Williams;

(f)    John Kevin Haley;

(g)    Tristan Garthe;

(h)    Darryl Edward Kirk;

(i)    Matthew Leslie Joiner;

(j)    David Michael Orr;

(k)    Grant Dene Sparks;

(l)    The Proper Officer of Deloitte SRT Pty Ltd ACN 611 749 841;

(m)    The Proper Officer of Cor Cordis Pty Ltd ACN 097 893 153;

(n)    The Proper Officer of Colin Biggers & Paisley Pty Limited ACN 166 080 682; and

(o)    The Proper Officer of Melgear Pty Limited ACN 056 330 646

be set aside.

6.    The matter be listed for case management on a date to be fixed, in consultation with the parties.

7.    Costs reserved.

THE COURT DIRECTS THAT:

1.    In relation to the examinations pursuant to s 596A of the Act, pursuant to s 596F(1)(a) of the Act, the Court directs the matters to be inquired on the examinations of Mr Kirk, Mr Joiner, Mr Orr and Mr Sparks will not include any matter considered and determined in Moreton Resources Ltd (in liq) & Ors v First Samuel Ltd & Ors [2020] QSC 339 or Elks v Melgear Pty Ltd & Ors [2023] QSC 150.

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

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTION

1    On 8 January 2025 a Judicial Registrar of this Court (Registrar) made Orders pursuant to s 596A and s 596B of the Corporations Act 2001 (Cth) (the Act) that certain summonses issue to identified persons, to attend Court to be examined on oath or affirmation about the examinable affairs of Moreton Resources Limited (Receivers Appointed) and MRV Metals Pty Ltd (Receivers Appointed). MRV is a subsidiary of Moreton Resources.

2    On 9 January 2025, the Registrar also made Orders pursuant to r 30.24 of the Federal Court Rules 2011 (Cth) (FCR) that certain identified persons produce books and records, that would be specified in an order for production, to which the examination relates or will relate.

3    On 29 and 30 January 2025 various interlocutory applications were filed by some of the examinees. These applications can be described as seeking to discharge the examination summonses, or alternatively to review the Registrar’s decision to issue the examination summonses and the orders for production. Originally these applications also sought leave to inspect the confidential affidavit pursuant to s 596C of the Act. However, the Plaintiff consented to Orders that the affidavit provided, during the process of preparing for the hearing of these applications.

4    These applications also sought the necessary extensions of time, pursuant to r 1.39 of the FCR. None of the parties or the interested person opposed the extensions of time being granted. As such and in any event, the extensions of time sought, will be granted.

5    Broadly, the issues were identified as:

(1)    Whether the examination summons should be discharged and/or the Orders for production of the Registrar of 8 and 9 January 2025 should be set aside, in relation the examinees required under s 596B of the Act, because:

(a)    of material non-disclosures which occurred in the obtaining of those orders; and/or

(b)    to allow those summons and orders for production to stand would:

(i)    serve to bring the administration of justice into disrepute;

(ii)    the examinations are an abuse of process; or

(iii)    occasion unjustifiable oppression to the examinees.

(c)    The discretion to order the examinations to take place was not enlivened.

(2)    Whether the examination summons should be discharged and/or the Orders for production of the Registrar of 8 and 9 January 2025 should be set aside, in relation to the examinees required under s 596A of the Act, because:

(a)    of the matters identified in (1)(a) and (b) above; and

(b)    in relation to the Production Orders, documents were ordered to be produced which:

(i)    could not relate to the examinable affairs of Moreton Resources or MRV; and

(ii)    were otherwise unduly broad, vague and thereby oppressive in their terms.

6    To properly deal with the arguments as the matters developed, it has been necessary to expand on these issues, which is done below. The history of this matter, both procedurally and substantively is lengthy and complicated. Further, the issues involved, given the number of parties and that substantive history is also complicated. This will become apparent during the course of these reasons.

7    For the following reasons, I am satisfied that all of the order for production and the examination summons issued to the s 596B examinees (apart from Mr van Staden) should be set aside. Furthermore, a direction will be made pursuant to s 597F, in relation to the s 596A examinations. There are several costs issues outstanding, as such, it will be necessary to hear further from the parties about costs.

BACKGROUND – TO THE REGISTRAR’S ORDERS

8    On 6 September 2024 Ms Louise Mary Elks, the Plaintiff, filed an originating application under s 596A and s 596B of the Act to undertake public examinations for the interests of shareholders, contributors and creditors, into the dealings of the company’s assets (OA). The “Company’s” were identified as Moreton Resources and MRV (Companies). The OA also sought orders for production.

9    The OA was accompanied by an Affidavit of the Plaintiff sworn on 2 September 2024 and filed on 6 September 2024, in support of the Orders sought (First Plaintiff Affidavit).

10    The Plaintiff stated that she was an eligible applicant, as authorised by the Australian Securities and Investment Commission (ASIC). The Plaintiff had sought this authorisation from ASIC on 1 April 2024 and it was granted on 21 August 2024.

11    On 20 September 2024, Mr Elks also sought authorisation from ASIC as an eligible applicant. This was granted on 14 October 2024.

12    The Plaintiff sought, in the OA pursuant to s 596A of the Act an examination summons against the following people said to be a company officer (as defined) or provisional liquidator (as defined):

(a)    Mathew Leslie Joiner;

(b)    Darryl Edward Kirk;

(c)    David Michael Orr;

(d)    Grant Dene Sparks;

(e)    John Kevin Haley;

(f)    Brett Garland

(g)    Philip Bryant;

(h)    Tristan Garthe;

(i)    Phillip Anthony Feitelson.

13    Further, in the OA pursuant to s 596B, the Plaintiff also sought an examination summons against the following persons on the basis that such persons met the threshold of persons who may be able to give information about the examinable affairs of Moreton Resources and MRV, being:

(a)    Lois Bullen (then) of Colin Biggers & Paisley;

(b)    Glen Williams of Colin Biggers & Paisley;

(c)    Brent van Staden formerly of Colin Biggers & Paisley; and

(d)    Angus Murray of Irish Bentley Lawyers.

14    Mr Murray has not made an application to set aside or discharge the examination summons issued to him. As such, it is not necessary to consider his position any further.

15    In additional to the examination summons, the OA also sought orders for production, because requests for documents (said in the OA to be the right of the requesting parties) had been made which were unanswered. The requests were said to be in relation to matters including:

(a)    company records requests;

(b)    requests for documents and amounts spent upon the administration; and

(c)    information pertaining to the claims upon the funds of Moreton Resources and MRV.

16    Further the OA stated that there were transactions and details to which the creditors, shareholders and contributors are now aware that require the company officers and “the said Voluntary Administration, Liquidation or Receivership” to answer, such as (but not limited to):

(a)    Appointment of the Administrator without a Board as defined under the Corporations Act 2001.

(b)    Share transactions undertaken by parties with market sensitive knowledge which would imply “Insider Trading”.

(c)    Agreements and transactions undertaken by company officers that ought to be market disclosable that were not, in the events leading up to the voluntary administration of the Company.

17    The OA did not separately specify which aspect of the OA applied to Moreton Resources or MRV. As such, it is presumed that each aspect was to apply to each and both.

18    The Plaintiff filed three Affidavits in support of the OA, being the First Plaintiff Affidavit, an affidavit sworn 8 October 2024 and filed on 10 October 2024 (the Second Plaintiff Affidavit) and an affidavit sworn 19 October 2024 and filed on 20 October 2024 (the Third Plaintiff Affidavit) (together the Confidential Affidavits).

19    The First Plaintiff Affidavit relevantly divides the Affidavit into matters under s 596A and s 596B (although there is a typographical error in the First Plaintiff Affidavit, stating it as “956B”). The Second Plaintiff Affidavit (apart from formal matters) only deals with matters relevant to s 596B and the Third Plaintiff Affidavit again deals with matters relevant to both s 596A and s 596B of the Act. All of these Affidavits have been treated as being in support of an application under s 596B of the Act and as such were to remain confidential except in so far as the Court orders: s 596C(2) of the Act.

20    Initially, these proceedings were set down for a contested hearing for leave to inspect the Confidential Affidavits.

21    However, on 22 April 2025 the Plaintiff provided her consent for the Confidential Affidavits to be inspected and provided to the parties. I was also satisfied that was appropriate and as such, I made orders on 22 April 2025, which granted the Examinees (as defined below) leave to inspect the Confidential Affidavits and further that the Plaintiff serve copies of the Confidential Affidavits.

22    The OA was originally listed before the Registrar for a first return date on 15 October 2024. As is usual, the OA proceeded on an ex-parte basis (however, an issue is raised about the proper characterisation of the hearing from 6 November 2024). The Plaintiff appeared on 15 October 2024 and made submissions to the Registrar in support of the OA.

23    Also on 15 October 2024, the Plaintiff sought for Mr Elks (who the Court was informed was also made an eligible applicant by ASIC, the day beforehand) to be joined as an applicant. This was submitted by the Plaintiff to be on the basis of s 597(5A)(b) of the Act.

24    No substantive orders were made on 15 October 2024. The Plaintiff was given an opportunity to provide additional evidence and to propose amendments to the draft orders for production.

25    The matter was adjourned until 6 November 2024. On that occasion Mr Elks appeared. Ms Bullen, then from Colin Biggers & Paisley was also in attendance, which was noted by the Registrar.

26    It is contentious whether Ms Bullen’s attendance on 6 November 2024 changed the nature of the hearing from ex parte, to then being one inter partes. The role of Mr Elks is also contentious. Both of these matters are considered in further detail below, in the context of the relevant issues and the parties’ submissions.

27    It is sufficient at this stage to observe that the Registrar reserved his position regarding Ms Bullen seeking leave to appear. Furthermore, clarification was sought from Ms Elks as to whether she was seeking to have Mr Elks appear as her agent for that day or for the examinations going forward.

28    The Plaintiff and Mr Elks appeared again before the Registrar on 26 November 2024. That was said to be to consider two issues, first Mr Elks’ interlocutory application by which he sought to be joined to the public examination commenced by the Plaintiff. Secondly, to also consider orders whereby Mr Elks was to act as agent for the Plaintiff, on the examination. The transcript records that the Registrar was minded permitting Mr Elks to partake in the examinations, on the basis that a single examination was more efficient. Orders were made by the Registrar on 26 November 2024 as follows:

THE COURT ORDERS THAT:

1.    Pursuant to section 597(5A) of the Corporations Act 2001 (Cth), Mr Alexander Jason Elks (Mr Elks):

a.    may take part in the examination commenced by the plaintiff; and

b.    may not represent the plaintiff in the examination.

29    The Registrar also gave the Plaintiff and Mr Elks an indication that he was minded to issue an examination summons to Mr Kirk, Mr Joiner, Mr Orr and Mr Sparks pursuant to s 596A with the balance of the examination summons sought, to be issued under s 596B of the Act. However, Orders were not made on this basis on this day. The Registrar also raised with the Plaintiff and Mr Elks’ matters regarding the Orders for production.

30    Relevantly on 8 January 2025, the Registrar made the following Orders:

THE COURT ORDERS THAT:

Issue Summons

1.    Pursuant to section 596A of the Corporations Act 2001 (Cth) (the Act), a summons issue to each of the following persons to attend the Court at the date and time set out in the summons and from day-to-day until excused by the Court to be examined on oath or affirmation about the examinable affairs of Moreton Resources Limited (Receivers Appointed) ACN 060 111 784 and MRV Metals Pty Ltd (Receivers Appointed) ACN 610 100 402 (the Companies):

(a)    Matthew Leslie Joiner;

(b)    Darryl Edward Kirk;

(c)    David Michael Orr; and

(d)    Grant Dene Sparks.

2.    Pursuant to section 596B of the Act, a summons issue to each of the following persons to attend the Court at the date and time set out in the summons and from day-to-day until excused by the Court to be examined on oath or affirmation about the examinable affairs of the Companies:

(a)    John Kevin Haley;

(b)    Brett Garland;

(c)    Phillip Bryant;

(d)    Tristan Garathe;

(e)    Philip Anthony Feitelson;

(f)    Lois May Bullen;

(g)    Glen Walter Williams;

(h)    Brett van Staden; and

(i)    Angus Murray.

31    On 9 January 2025, the Registrar made a general order for production pursuant to r 30.24 of the FCR in relation to all of the people who had been ordered to attend an examination summons pursuant to either s 596A or s 596B and as to the Proper Officer of Colin Biggers & Paisley Pty Limited ACN 166 080 682 (CBP), the Proper Officer of Cor Cordis Pty Ltd ACN 097 893 153, the Proper Officer of Deloitte SRT Pty Ltd ACN 611 749 841 and then Proper Officer of Melgear Pty Limited ACN 056 330 646. Also on 9 January 2025, separate orders were made for production of documents or things as listed in an Annexure to each Order.

BACKGROUND – MORETON RESOURCES AND MRV

32    Moreton Resources was described as historically being involved in the resources, oil and gas sector, originating in 1993 under a former name of Pinnacle Mining. It changed its name to Moreton Resources in late 2013. More recently the assets in coal areas in Queensland, were held by its subsidiaries.

33    On 24 May 2017 a Secured Debenture Deed was entered between Moreton Resources (as issuer), MRV (as guarantor), First Samuel Ltd (as a debenture holder and a security trustee), A & J Consultancy Pty Ltd (as a debenture holder), Mr Elks (as a debenture holder) and Mr Feitelson (as a debenture holder). At this time, Mr Elks was a director of Moreton Resources.

34    Also on 24 May 2017, Moreton Resources (as issuer), MRV (as guarantor) and First Samuel (as Security Trustee) entered into the Security Trust Deed, creating the Moreton Security Trust relevantly for the debenture holders (described as Beneficiaries in the document): also see Moreton Resources Ltd (in liq) & Ors v First Samuel Ltd & Ors [2020] QSC 339 (Flannagan J) (2020 Judgment) at [4] and [8] and Elks v Melgear Pty Ltd & Ors [2023] QSC 150 (Cooper J) (2023 Judgment) at [2].

35    On 10 October 2019, First Samuel, as Security Trustee, registered an all present and after acquired property (AllPAAP) security interest on the Personal Property Securities Register (PPSR): see 2020 Judgment at [6].

36    On 10 June 2020, Mr Orr and Mr Sparks of Deloitte were appointed as voluntary administrators of Moreton Resources and MRV.

37    On 15 July 2020, Mr Orr and Mr Sparks of Deloitte were appointed as joint and several liquidators of Moreton Resources and MRV.

38    On 25 September 2020, Mr Kirk and Mr Joiner of Cor Cordis were appointed as joint and several receivers of MRV and later on 25 May 2022, as joint and several receivers of Moreton Resources. The appointment of receivers to MRV was pursuant to a deed of appointment of receivers by Mr Feitelson and A & J on behalf of First Samuel, pursuant to the Secured Debenture Deed and the Security Trust Deed: also see 2023 Judgment at [4].

39    On 16 October 2020, Mr Feitelson appointed Melgear as the successor security trustee of the Moreton Security Trust: 2020 Judgment at [77].

40    On 13 November 2020, after a hearing in October 2020, the 2020 Judgment was delivered, in BS10147/20. The applicants in those proceedings were Moreton Resources (in liq) (first applicant), MRV (in liq) (second applicant), Mr Orr and Mr Sparks as liquidators of Moreton Resources (third applicants) and First Samuel (first respondent), Mr Feitelson (Second respondent), A & J (third respondent), Zinc Oxide (Aust) Pty Ltd (fourth respondent) and Mr Kirk and Mr Joiner as receivers of MRV (fifth respondents). The primary relief sought by the applicants in those proceedings were (at [17]), first, a “direction pursuant to s 99(2) of the Property Law Act 1974 (Qld) (PLA) that the Sale Interests (as defined in the Jadar Sale Agreement) be sold pursuant to that agreement”. Secondly, a declaration was sought pursuant to s 418A of the Act that the appointment of the fifth respondents (being the receivers of the property of MRV) was invalid (2020 Proceedings). The resolution of the second issue required consideration and construction of the Secured Debenture Deed and the Security Trust Deed (at [78]) and on that construction, the declaratory relief was refused (at [107]). The Court also declined to exercise its discretion under s 99(2) of the PLA to make the direction sought (at [144]). The originating application was dismissed in the 2020 Judgment. There was no appeal from the 2020 Judgment.

41    On 16 December 2020, the judgment as to costs was delivered, Moreton Resources Ltd (in liq) v First Samuel Ltd & Ors [2020] QSC 381, Flanagan J (2020 Costs Judgment).

42    On 3 March 2021, the Mine Sale Agreement was entered. The total consideration, which was to be adjusted was $6,500,000.00. The Mine Sale Agreement was between MRV (as Seller) and the Receivers on one hand and Thomson Resources Ltd (as Buyer) on the other.

43    Mr Elks commenced further proceedings in the Supreme Court of Queensland in 2021, in proceedings BS12986/21 (2023 Proceedings). It is these proceedings which are the subject of the 2023 Judgment, delivered on 14 July 2023. The parties to the 2023 Proceedings were Mr Elks (applicant), Melgear (first respondent), Mr Kirk and Mr Joiner as receivers of MRV (second respondents) and Mr Feitelson (third respondent). The 2023 Judgment concerned secured debts owed by Moreton Resources and MRV (at [1]). Mr Elks sought declaratory and other relief concerning (at [7]):

(a)    the distribution of monies held by the receivers following the mine sale; and

(b)    the position of Melgear as security trustee.

44    That reference to the mine sale, was the Mine Sale Agreement.

45    The issues to be determined in the 2023 Judgment were described as (at [11]):

11    ….

(a)    first, whether the secured debentures held by First Samuel were paid out and replaced by unsecured debt;

(b)    secondly, whether the February 2020 Agreement altered the priority of creditors of Moreton Resources and MRV in the manner contended for by Mr Elks;

(c)    thirdly, whether the assignment of the debt owed to First Samuel in July 2021, was effective to assign the indebtedness of MRV and the benefit of the security provided under the Secured Debenture Deed to Mr Elks;

(d)    fourthly, whether Melgear was validly appointed as security trustee under the Security Trustee;

(e)    fifthly, if Melgear is found to have been validly appointed, whether there is any other basis upon which Melgear should be removed as security trustee.

46    The 2023 Judgment dismissed Mr Elks originating application. There was no appeal from the 2023 Judgment. On 11 September 2023, Cooper J in the 2023 Proceedings delivered the judgment as to costs and necessary orders from the 2023 Judgment: Elks v Melgear Pty Ltd & Ors (No 2) [2023] QSC 207 (2023 Costs Judgment).

47    On 3 May 2022, Mr Hambleton and Ms Chua of were appointed as administrators of Moreton Resources and MRV (amongst others), by the liquidators. This appointment was pursuant to s 436B of the Act and was following a request from Mr Elks to convene a meeting to consider this appointment. Mr Elks as the sole director of MRL Moreton Resources Proprietary Limited, sought to advance a deed of company arrangement (MRL DOCA).

48    On 25 May 2022, while Moreton Resources and MRV were in administration, Melgear appointed Mr Kirk and Mr Joiner as receivers of Moreton Resources.

49    On 30 May 2022, Mr Hambleton and Ms Chua delivered the second report to creditors for the second meeting of creditors which was to occur on 7 June 2022. The details of the MRL DOCA were outlined in section 6 of the second report. The recommendation provided was to execute the MRL DOCA.

50    On 7 June 2022, at the meeting of creditors, it was resolved that Moreton Resources, MRV (and two other related companies) enter the MRL DOCA. The Minutes of that meeting record that no officers of the companies were present, however that Mr Elks, a former director was present as a creditor. Relevantly, in relation to the proofs of debt and proxies, the Minutes also record that there were 26 creditors for Moreton Resources and Mr Elks represented, including by way of proxy, 21 of those creditors. In relation to MRV, 19 creditors were listed and Mr Elks represented, including by way of proxy, 17 of those creditors. The voting on the resolution to enter the MRL DOCA by Moreton Resources is recorded as 22 in favour, 3 against and 1 abstained. In relation to MRV, voting on the resolution to enter the MRL DOCA is recorded as 19 in favour and none against.

51    A condition precedent to the operation of the MRL DOCA was that on the passing of the resolution by creditors to enter the MRL DOCA, the voluntary administrators would remove the directors of the companies (relevantly, including Moreton Resources and MRV) pursuant to s 442A of the Act and replace the directors with parties nominated by MRL Moreton. The people nominated by MRL Moreton were the Plaintiff, Mr Aaron Nicol and Mr Nigel Slonker.

52    On 7 June 2022, the Plaintiff was appointed a director of Moreton Resources and MRV. The Plaintiff remains a current director of Moreton Resources and MRV.

53    On 8 June 2022, Moreton Resources and MRV (amongst others) entered the MRL DOCA (DOCA), with Mr Hambleton and Ms Chua being appointed as the deed administrators. The Acquiring Company as defined under the DOCA, was MRL Moreton. The Plaintiff relevantly, executed the DOCA on behalf of Moreton Resources and MRV. Mr Elks executed the DOCA on behalf of MRL Moreton.

54    On 22 June 2022, Moreton Resources, subject to a deed of company arrangement and Mr Hambleton and Ms Chua as deed administrators, as applicants made an application to the Supreme Court of Queensland. On 21 September 2022, pursuant to that application, Wilson J made orders, relevantly granting leave to Mr Hambleton and Ms Chua pursuant to s 444GA(1)(b) of the Act to transfer all shares in Moreton Resources to MRL Moreton, in accordance with the DOCA.

55    On 2 December 2022, Burns J in the Supreme Court of Queensland made Orders pursuant to s 482 of the Act terminating the winding ups of (amongst others) Moreton Resources and MRV. Mr Orr and Mr Sparks have not since had any further involvement with Moreton Resources or MRV.

56    On this same day, Burns J also declared that the DOCA had been wholly effectuated and its terms fulfilled. This was on the application of the Mr Hambleton and Ms Chua, as deed administrators.

57    Mr Elks is a current director of Moreton Resources, having been most recently appointed on 8 April 2024. Mr Elks has also previously been a director for each of Moreton Resources and MRV for different periods of time, as follows:

(a)    Moreton Resources: 28/11/2013 to 22/07/2019, 02/09/2019 to 01/10/2019 and on 16/11/2022;

(b)    MRV: 08/01/2016 to 28/04/2019.

58    On 9 August 2024, notification of a resolution was given and an application was made to ASIC to change Moreton Resources from a public company to a proprietary limited company. On 26 December 2024, Moreton Resources ceased to be a public company and changed its name to Moreton Resources Pty Ltd.

59    On 17 September 2024, Mr Joiner ceased to be a receiver of MRV and on 8 November 2024, resigned as a receiver of Moreton Resources. This left Mr Kirk as the sole receiver for Moreton Resources and MRV.

APPLICATIONS

60    There are various interlocutory applications in relation to the Orders of the Registrar made on 8 and 9 January 2025. Not all examinees, the subject of an Order by the Registrar made an application, however in so far as the individuals did, where appropriate, I will refer to them collectively as the Examinees. Each of the following applications sought two additional matters which have already been resolved. First, each application sought access to the Confidential Affidavits of the Plaintiff filed in support of the OA. Secondly, each application sought the necessary extension of time. As such, the descriptions of the parties’ applications will not include these determined matters but will only outline the remaining contentious issues.

The CBP Parties’ Application

61    Colin Biggers & Paisley act for:

(a)    Mr Feitelson;

(b)    Mr Kirk and Mr Joiner;

(c)    Mr Glen Williams;

(d)    Ms Lois Bullen;

(e)    CBP;

(f)    Cor Cordis; and

(g)    Melgear.

(the CBP Parties)

62    The CBP Parties filed an application on 30 January 2025, relevantly seeking:

(1)    pursuant to r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) (FCCR) that the summons for examination issued to Mr Kirk, Mr Joiner, Mr Feitelson, Mr Williams and Ms Bullen pursuant to the Orders of the Registrar dated 8 January 2025 (CBP Examination Summonses), be discharged;

(2)    further or in the alternative, pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA) a review of the power exercised by the Registrar to order:

(a)    the CBP Examination Summonses under s 596A and s 596B of the Act; and

(b)    on 9 January 2025, the CBP Parties (where relevant by its proper officer) to produce documents or things pursuant to r 30.34 of the FCR (CBP Production Orders).

63    Mr Kirk and Mr Joiner were summoned under s 596A of the Act, whereas the remainder of the individuals from the CBP Parties were summoned pursuant to s 596B of the Act.

The HWLE Parties’ Application

64    HWL Ebsworth Lawyers currently, at the time of the hearing, act for:

(a)    Mr Bryant;

(b)    Mr Garland; and

(c)    Mr Haley.

(the HWLE Parties)

65    Initially, Mr Garthe was also represented by HWL Ebsworth Lawyers. However, on 24 March 2025, Mr Garthe filed a notice of change of address for service and it was clear from this point Mr Garthe was acting for himself. Mr Garthe continues to rely on the HWLE Parties’ application and broadly the submissions made.

66    Further, Mr van Staden was also represented by HWL Ebsworth Lawyers from 13 February 2025. Orders by consent were made on 12 June 2025, whereby Mr van Staden was granted leave to discontinue his participation in the applications filed by HWL Ebsworth on his behalf (June Orders). The effect of the June Orders was that Mr van Staden would produce documents that would have been the subject of the Orders for production and he would attend before the Court to be examined. A further application has been made in relation to the June Orders, this is outlined below.

67    The HWLE Parties’ (which included Mr Garthe at that time) application filed on 30 January 2025, relevantly sought that the Orders for production made pursuant to r 30.24 of the FCR to Mr Bryant, Mr Garland, Mr Haley and Mr Garthe be adjourned to a date to be fixed, pending an application for review for the Registrar’s Orders, being heard and determined.

68    Further on 30 January 2025, the HWLE Parties (which included Mr Garthe at that time) filed an application seeking:

(1)    Pursuant to r 11.5 of the FCCR the summonses for examination issued to Mr Bryant, Mr Garland, Mr Haley, Mr van Staden and Mr Garthe pursuant to orders of the Registrar on 8 January 2025 (HWLE Examination Summonses) be discharged;

(2)    Further or alternatively, pursuant to s 35A(5) of the FCA and r 3.11 of the FCR, the HWLE Examination Summonses be reviewed;

(3)    The HWLE Examination Summonses be stayed or adjourned, until the application has been heard and determined;

(4)    In respect of the orders of 9 January 2025 requiring production of documents or things by the HWLE Parties and Mr Garthe (HWLE Production Orders):

(a)    pursuant to r 3.11 of the FCR these orders be reviewed; and

(b)    the orders be stayed or adjourned, until the application has been heard and determined;

(5)    that the order of the Registrar dated 26 November 2024 made pursuant to s 597(5A) that Mr Elks may take part in the examination, be reviewed pursuant to r 3.11 of the FCR.

69    All of the HWLE Parties were summoned pursuant to s 596B of the Act.

The JWS Parties’ Application

70    Johnson Winter Slattery act for:

(a)    Mr Sparks;

(b)    Mr Orr; and

(c)    Deloitte.

(the JWS Parties)

71    The JWS Parties filed an application on 31 January 2025, relevantly seeking:

(1)    pursuant to r 11.5 of the FCCR that the summonses for examination issued to Mr Orr and Mr Sparks pursuant to Orders of the Registrar dated 8 January 2025 (JWS Examination Summonses) be discharged;

(2)    further or alternatively, pursuant to s 35A(5) a review of the power exercised by the Registrar to order:

(a)    the JWS Examination Summons under s 596A and s 596B of the Act; and

(b)    on 9 January 2025, the JWS Parties (where relevant by its proper officer) to produce documents or things pursuant to r 30.34 of the FCR (JWS Production Orders).

(3)    the JWS Examination Summonses and JWS Production Orders be stayed or adjourned until the application is heard and determined.

72    Despite the JWS Parties’ application referring to both provisions, the two individual JWS Parties were summoned pursuant to s 596A of the Act.

The further van Staden Application

73    On 30 July 2025, CBP as applicant, filed an application in these proceedings seeking pursuant to r 1.3 of the FCCR and r 39.05 of the FCR to set aside Order 3 of the June Orders (July Application). Order 3 was the Order that Mr van Staden would attend before the Court to be examined pursuant to the relevant examination summons.

74    Leave to appeal has also been sought against the June Orders.

75    The CBP Parties submitted that the July Application would effectively be determined by the outcome of the hearing of these Applications. On 12 August 2025, the July Application was adjourned for hearing to a date to be fixed, after delivery of this judgment.

All the Applications

76    Although all of the applications are slightly different, in essence, each seeks:

(1)    to discharge the examination summons pursuant to r 11.5 of the FCCR; or

(2)    to review the Registrar’s decision to issue the examination summonses and the orders for production, pursuant to s 35A(5) of the FCA and r 3.11 of the FCR.

77    The procedure under r 11.5 can be invoked in circumstances where there are allegations of an abuse of process, regarding the examination summons: Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91 at [30] (Foster, Wigney and Markovic JJ). It is not restricted to such circumstances and discharge can be sought based on legal principle, where the applicant establishes a legal basis for discharging the summons: Kimberley Diamonds at [83].

78    The Court’s power under s 35A(5) of the FCA is:

(a)    by way of a rehearing de novo, in the sense that parties may adduce fresh evidence as of right; and

(b)    the Judge hearing the matter is not fettered by the Registrar’s decision; and

(c)    the matter must be determined on the basis of the evidence before it, whether or not that evidence was in existence at the time of the Registrar’s decision.

Cathro, in the matter of Lidcombe Plastering Services Pty Ltd (in liq) [2018] FCA 1138 at [30] (Gleeson J, then of this Court); Deputy Commissioner of Taxation v Australian Securities and Investments Commission (2013) 304 ALR 319; [2013] FCA 623 at [36]-[38] (Kenny J); Kirk, in the matter of Westlink Pty Ltd (Receivers Appointed) (2023) 170 ACSR 549; [2023] FCA 893 at [35] (S C Derrington J); Pitman v Park (Liquidator), in the matter of BAM Recycling Pty Ltd (in liq) (2020) 17 ABC(NS) 261; [2020] FCA 887 at [28]-[29] (Derrington J); Trevor, in the matter of Bell Group NV (in liq) (No 2) (2017) 122 ACSR 418; [2017] FCA 927 at [20] (Jagot J, then of this Court); Re Newheadspace Pty Ltd (in liq) (2020) 114 ACSR 224; [2020] NSWSC 173 at [65] (Rees J).

79    This power of the Court under s 35A includes a power to set aside an order for production under r 30.24: Giraud v Albarran (liquidator) (2021) 156 ACSR 236; [2021] FCA 1274 at [30]-[31] (Derrington J); Cathro at [26]-[27]; Bell Group at [19].

RELEVANT PRINCIPLES

80    The Act provides in Division 1, Part 5.9 provisions for examining a person about the “examinable affairs” of a corporation that is in “external administration” within the meaning of Chapter 5 of the Act: Walton v ACN 004 410 833 LTD (in liq) (2022) 275 CLR 508; [2022] HCA 3 at [89], [120] and [125] (Gageler J, as the Chief Justice then was). In this context, external administration extends beyond circumstances of winding up a corporation and includes, relevantly when some but not all of the property of a corporation is in receivership: Walton at [119]; Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5 at [96] (Gageler J).

81    Section 596A is headed “Mandatory examination” and s 596B is headed “Discretionary examination”. Although these provisions are different, both:

(1)    require an “eligible applicant” to apply for the summons; and

(2)    for it to relate to the “examinable affairs” of the corporation; and

(3)    are subject to the doctrine of abuse of process.

Palmer at [90] and [92].

82    Relevantly, s 9 of the Act defines “eligible applicant” and “examinable affairs” as follows:

“eligible applicant”, in relation to a corporation, means:

(a)    ASIC; or

(b)    a liquidator or provisional liquidator of the corporation; or

(c)    an administrator of the corporation; or

(d)    an administrator of a deed of company arrangement executed by the corporation; or

(da)    a restructuring practitioner for the corporation; or

(db)    a restructuring practitioner for a restructuring plan made by the corporation; or

(e)    a person authorised in writing by ASIC to make:

(i)    applications under the Division of Part 5.9 in which the expression occurs; or

(ii)    such an application in relation to the corporation.

…

“examinable affairs”, in relation to a corporation means:

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

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

(c)    the business affairs of any of the following, in so far as those business affairs are, or appear to be, relevant to the corporation or to anything that is included in the corporation's examinable affairs because of paragraph (a) or (b):

(i)    a body corporate that is, or has been, related to the corporation;

(ii)    an entity that is, or has been, connected with the corporation.

83    As is apparent from the definition of “examinable affairs”, in subsection (c) that term also includes the “business affairs” of entities and persons connected with the corporation: Palmer at [14] (Kiefel, Keane, Nettle and Gordon JJ). Further from subsection (b) of the definition it also includes the “affairs” of a body corporate which extends the meaning further by incorporation of the matters in s 53 of the Act: Palmer at [14]; Walton at [150]; Kimberley Diamonds at [12]. The term “examinable affairs” is “broadly defined”: Meteyard v Love (2005) 65 NSWLR 36; [2005] NSWCA 444 at [9] (Santow JA) and [32]-[34] (Basten JA, with whom Beazley JA agreed). However, it does not extend beyond the affairs of the corporation and connected entities or matters connected to those affairs: Palmer at [97].

Mandatory Examination

84    Section 596A of the Act requires the Court to summon a person for examination about a corporation’s examinable affairs, if both subsections (a) and (b) are met. Section 596A provides as follows:

596A    Mandatory examination

The Court is to summon a person for examination about a corporation's examinable affairs if:

(a)    an eligible applicant applies for the summons; and

(b)    the Court is satisfied that the person is an officer or provisional liquidator of the corporation or was such an officer or provisional liquidator during or after the 2 years ending:

(i)    if the corporation is under administration—on the section 513C day in relation to the administration; or

(ii)    if the corporation has executed a deed of company arrangement that has not yet terminated—on the section 513C day in relation to the administration that ended when the deed was executed; or

(iia)    if the corporation is under restructuring—on the section 513CA day in relation to the restructuring; or

(iib)    if the corporation has made a restructuring plan that has not yet terminated—on the section 513CA day in relation to the restructuring that ended when the plan was made; or

(iii)    if the corporation is being, or has been, wound up—when the winding up began; or

(iv)    otherwise—when the application is made.

Note:    This section applies to a CCIV in a modified form: see section 1237U.

85    Generally, s 596A is described as requiring satisfaction of only two criteria, before the examination summons is mandatorily to issue, as of right (subject to the doctrine of abuse of process): Walton at [90]-[92] and [152]; Palmer at [12]-[13] and [94]; Kimberley Diamonds at [20]. Those two criteria are:

(1)    first, the applicant is an “eligible applicant”; and

(2)    second, the person to be examined is or was, during the relevant period, an officer or provisional liquidator of the corporation.

86    It is appropriate to described it as, generally, because Edelman and Stewart JJ in Walton, observed at [158] that s 596A has been described as only containing two criteria, but a more complete statement is that it has five criteria, as follows:

(1)    first, the applicant is an “eligible applicant”; and

(2)    second, the person to be examined is or was, during the period, an officer or provisional liquidator of the corporation; and

(3)    third, the summons must be about the “examinable affairs”; and

(4)    fourth, the form of the summons must comply with s 596D of the Act; and

(5)    fifth, the company in question must be subject to some form of external administration for the purposes of Ch 5 of the Act.

87    The purpose of s 596A is not to be confined by reference to a benefit to the company, its creditors or its contributories: Walton at [169]. Further, it is unnecessary for the eligible applicant to establish any particular reason for seeking the mandatory summons, or to demonstrate that the examination would have practical utility or that the examination would or would likely achieve any particular result or outcome, or that the examination would be in any sense desirable or efficacious: Kimberley Diamonds at [21].

88    On this basis, the additional criteria identified by Edleman and Stewart JJ should not be read as being directed to the reason or purpose of seeking the examination summons under s 596A, but simply satisfaction of the jurisdictional facts required by s 596A.

89    Although the Act, in s 596C does not require an affidavit in support of an application for an examination summons under s 596A, r 11.3(3) of the FCCR requires an affidavit. Rule 11.3 applies to both applications for an examination summons, under either s596A or s 596B of the Act. It will be on the basis of that affidavit evidence, that the Court will assess whether the statutory criteria for the issue of an examination summons under s 596A is met, and hence whether it should issue: Kimberley Diamonds at [21].

Discretionary Examination

90    Section 596B confers a discretion on the Court to make an order for an examination summons to a person. Section 596B requires the Court to be satisfied of two matters, before the discretion arises. First, that the applicant is an “eligible applicant”. Secondly, the Court must be satisfied that the proposed examinee: Kimberley Diamonds at [23].

(a)    has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation (s 596B(1)(b)(i)); or

(b)    may be able to give information about the examinable affairs of the corporation (s 596B(1)(b)(ii)).

91    It is worth setting out s 596B of the Act in full, which provides as follows:

596B    Discretionary examination

(1)    The Court may summon a person for examination about a corporation's examinable affairs if:

(a)    an eligible applicant applies for the summons; and

(b)    the Court is satisfied that the person:

(i)    has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or

(ii)    may be able to give information about examinable affairs of the corporation.

(2)    This section has effect subject to section 596A.

92    Even if the criteria has been satisfied, as an exercise of discretion, the Court could decline to issue the examination summonses on the basis that it was not sufficiently justified or would not have any practical utility: Kimberley Diamonds at [24]. The exercise of the power under s 596B is also subject to the doctrine of abuse of process: Walton at [92].

93    An application for an examination summons under s 596B must be supported by an affidavit: s 596C of the Act. That affidavit contains the matters upon which an applicant relies on, in support of the application of the examination summons under s 596B of the Act: Re Southern Equities Corp Ltd (in liq); Bond and Another v England (1997) 25 ACSR 394; [1997] SASC 6399 at 428 (Lander J, with whom Cox and Bleby JJ agreed). That is, the Affidavit is to support the jurisdictional facts required under s 596B(1)(a) and (b): Pitman at [33]-[35] (Derrington J).

ISSUES

94    Before setting out the issues to be addressed, it should be recorded that there are only four individual examinees who were summoned under s 596A of the Act. Two were (Mr Orr and Mr Sparks) the two individual examinees from the JWS Parties, who accepted that the two statutory criteria applied to them. Two were (Mr Kirk and Mr Joiner) of the CBP Parties. The only basis relied on for setting aside the two s 596A summons by the JWS Parties was that there was material non-disclosures by the Plaintiff at the hearing of the ex parte hearing, such that those summons are an abuse of process. The CBP Parties also made this submission but as is considered below, took the submission further, in relation to what was described as the “suitability issues”.

95    The issues as identified by the parties are set out above. It is necessary to expand on these somewhat, as follows:

(1)    Should the examination summonses issued pursuant to s 596A or s 596B of the Act be discharged or set aside because:

(a)    of material non-disclosure by the Plaintiff? (Material Non-disclosure)

(b)    the discretion to order the examinations was not properly enlivened? (Discretion under s 596B)

(c)    of the doctrine of abuse of process? (Abuse of Process)

(i)    Illegitimate purpose, being first, to investigate issues that have already been decided or which do not warrant scrutiny and secondly, that the dominant purposes of the examinations are to cause serious trouble for an inconvenience to Mr van Staden, the CBP Parties and the other examinees;

(ii)    Unjustifiably oppressive, because, first the Plaintiff proposes to conduct the examinations herself and it is alleged that she is not a fit and proper person to carry out the examinations, secondly, that the examination summons were obtained without bringing all material facts to the Court’s attention and thirdly, that the dominant purposes of the examinations are to cause serious trouble for an inconvenience to Mr van Staden, the CBP Parties and the other examinees;

(iii)    Administration of Justice into Disrepute, by first, that the examination summons were obtained without bringing all material facts to the court’s attention(including such facts to permit the Court to assess whether the making of the examination summonses was an abuse of process), and secondly, that the Plaintiff proposes to conduct the examinations herself and it is alleged that she is not a fit and proper person to carry out the examinations.

(2)    Should the Orders for Production be discharged or set aside because:

(a)    the examination summonses have been discharged or set aside?

(b)    the documents sought could not relate to the examinable affairs of Moreton Resources or MRV?

(c)    the terms of the Orders for Production were otherwise unduly broad, vague and thereby oppressive?

(Orders for Production Issues)

96    Before considering each of these issues, it was accepted by all Examinees, but only for the purposes of these proceedings, that the Plaintiff was an “eligible applicant”.

Material Non-disclosure

97    Broadly, the Examinees put this submission in two-ways. First, that a material non-disclosure in and of itself means that the orders for the examination summons “must almost invariably fall”. Further, that on the ex parte application, the Examinees submit that this is irrespective of whether the material non-disclosure was inadvertent or deliberate. This is because, so it was submitted, there is no discretion to set aside an ex parte Order obtained in circumstances of material non-disclosure, it must fall.

98    The Plaintiff and Mr Elks disagree submitting that even if there is a material non-disclosure (which they contest), this does not inevitably lead to the Orders being set aside or discharged, they submit that such a position (if established) only gives rise to a discretion. It is then to consider, in the exercise of that discretion whether the Orders should be set aside or discharge. Further, the Plaintiff and Mr Elks submit that in exercising that discretion it is relevant whether any material non-disclosure, if established, was inadvertent or deliberate.

99    Second, the Examinees submit that such material non-disclosure, on an ex parte application is an abuse of process. As an abuse of process, the Examinees submit that the examination summonses must be set aside. The Plaintiff and Mr Elks, disagree submitting similarly that there has been no material non-disclosure, but even if there had been, it would not of itself be an abuse of process and would only give rise to a discretion to set aside the examination summons. The Plaintiff and Mr Elks submit that the onus of satisfying the Court that there is an abuse of process is a “heavy one”: Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ). This aspect, of the alleged abuse of process, because of the material non-disclosure will be dealt with under the matters regarding an abuse of process. However, the Examinees quite properly accept the “heavy” onus.

100    More specifically, what was in dispute in relation to the alleged material non-disclosure was whether:

(a)    as raised by Mr Elks, whether the hearing for the examination summons was properly to be regarded as ex parte (An ex parte hearing?);

(b)    the obligation or duty of disclosure extended to “make full disclosure”, “full and frank disclosure” or to “make all material disclosures which might impact upon the orders sought, including all material which might lead to the Court to refuse the application” (The Disclosure Required?);

(c)    the content of the obligation or duty of disclosure was different under s 596A and s 596B of the Act? (The Content of the Duty of Disclosure?);

(d)    in the particular circumstances, has the Plaintiff fulfilled or failed in her duty of disclosure? (Compliance with the Duty of Disclosure?);

(e)    if, the Plaintiff failed in her duty of disclosure:

(i)    does that inevitably lead to the order so obtained being set aside or does a discretion arise, for consideration of whether to set aside the order so obtained (Consequences of insufficient disclosure);

(ii)    was it relevant that the non-disclosure was intentional or inadvertent (Intentional or Inadvertent non-disclosure).

An ex parte Hearing?

101    Both the Examinees and the Plaintiff submit and accept that the hearing before the Registrar proceeded on an ex parte basis. The Plaintiff, in the alternative did seek to adopt the position as advanced by Mr Elks, if it was accepted.

102    Mr Elks submits that the hearing, in relation to one of the CBP Parties, being Mr Feitelson did not proceed ex parte. Mr Elks’s submissions describes Mr Feitelson as a “proposed Section 596A Examinee”. Although the OA did seek to examine Mr Feitelson pursuant to s 596A, that was not the basis upon which the Registrar made the examination summons. The Order of the Registrar as against Mr Feitelson was on the basis of s 596B of the Act. In any event, Mr Elks submits that the hearing in relation to the application for an examination summons against Mr Feitelson did not proceed ex parte. This was relevant, Mr Elks submitted as if the matter was not ex parte it would change the nature of the disclosure obligation on the Plaintiff at the hearing.

103    Mr Elks develops his submission that the hearing was not ex parte effectively on two bases, first because Ms Bullen of CBP appeared on 6 November 2024 and secondly, because from 14 November 2024 the Court had indicated “in no uncertain terms” that the decision to issue the summons had been made and could not have been contested from that point in time.

104    Mr Elks makes the first submission on the basis that Ms Bullen appeared at the hearing for Mr Feitelson on 6 November 2024. Submissions and an affidavit were also filed, on behalf of Mr Feitelson. The arguments advanced by Ms Bullen, Mr Elks submits, carried the day. Mr Elks takes this submission further to argue that Ms Bullen was in a position and did thereby also represent the interests of the other directors. In this regard Mr Elks relies on the written submissions of Ms Bullen which stated, after setting out the relevant background and the relevant position of Mr Feitelson that “(t)he same would apply in respect of any examinable officers whose appointment ceased prior to 6 September 2022”. This is relied upon by Mr Elks to submit that those directors’ interests were protected and by this appearance and the submissions changed the nature of the hearing such that it was no longer ex parte.

105    Mr Elks relies on R v Central Sugarcane Prices Board ex parte Pleystowe Sugar Mill Supplies Committee [1984] 2 Qd R 55 at 60 (G N Williams J, with whom Andrews SPJ and Macrossan J agreed)) to support his submission that because a representative of Mr Feitelson appeared and made submissions, the applications for examination summonses were no longer ex parte.

106    The passage from Central Sugarcane relied on by Mr Elks states as follows:

Those orders nisi were refused by the Chamber Judge on May 4, 1984, and the prosecutors pursuant to O. 70, r. 6 of The Rules of the Supreme Court renewed the application to the Full Court. In actual fact the proceedings before the Chamber Judge were not ex parte, as the respondents appeared and argued against the making of the orders sought.

107    Order 70, rule 6 of the Rules of the Supreme Court at that time provided for appeals for the refusal of ex parte applications and it is apparent that it was pursuant to that rule, that the appeal or renewal of the application was advanced. However, as was observed by G N Williams J that matter was not in fact ex parte. This was not because on one occasion during the proceedings, a representative appeared. The history of the proceedings as was outlined (at 56-58) was inter partes. Points of claim and defence had been delivered, lists of documents were exchanged between the parties and submissions were made. Central Sugarcane does not assist Mr Elks’ submission, the matter is distinguishable.

108    Mr Elks also relied on Re Carpenter International Pty Ltd (2016) 51 VR 190; [2016] VSC 118 wherein it was observed that the administrator appearing and opposing the extension did so on behalf of unsecured creditors. This was in the context of an application for an extension of time to register collateral under s 588FM of the Act. It was submitted in Re Carpenter (at [208]) that the only people who could be prejudiced by the extension application were the unsecured creditors. The passage relied on by Mr Elks, is in the context where the Court held that the discretion under s 588FM was not enlivened (at [229]). It should also be noted that the plaintiff in the proceedings was the administrators. Relevantly, Cameron J stated at [234]:

234    As to steps being taken to protect the interests of unsecured creditors, in this case, the application for an extension was not ex parte. The administrators appeared and opposed the grant of an extension, and in doing so they represented the interests of the unsecured creditors. This is one way in which the interests of unsecured creditors have been protected, as contemplated by Black J in Re Cardina Nominees Pty Ltd.

109    By extrapolation, Mr Elks relied on this to submit that when Ms Bullen appeared for one previous director, being Mr Feitelson and because there was a submission which could relate to the other directors, that then changed the nature of the hearing.

110    The proceedings in Re Carpenter were inter partes. The application was brought by the administrators of Carpenter International Pty Ltd about disputes regarding ownership of cattle arising due to the terms of agreements and that the Administrator were justified in proceeding on a certain basis (at [1]-[3]). Certain creditors appeared at the hearing, which claimed to each have security interests (at [5]-[7]).

111    The decision in Re Carpenter is of little assistance. However, in so far as Mr Elks submitted that the nature of an ex parte application can change, should a party appear and oppose the orders sought, so much can be accepted, depending on the particular circumstances.

112    Applications for an examination summons under s 596A or s 596B of the Act usually proceed on an ex parte basis: Onefone Australia Pty Ltd v Onetel Ltd (2007) 208 FLR 140; [2007] NSWSC 69 at [43].

113    The OA stated it was made “with particular reliance upon on s 596A and s 596B” of the Act. The OA then went on to seek examination summons against certain people pursuant to either s 596A or s 596B of the Act. The Plaintiff appeared for herself on the first return date before the Registrar on 15 October 2024. No one else appeared on 15 October 2024, however mention was made of seeking for Mr Elks to be joined as an applicant or potentially relying on s 597(5A)(b) of the Act. The hearing was adjourned until 6 November 2024. The Plaintiff was to provide further evidence and to provide amended versions of certain documents.

114    At the resumed hearing on 6 November 2024 the following occurred. The Plaintiff announced her appearance, and Mr Elks announced that he was “potentially appearing on behalf of the applicant”, which he agreed was as an agent pursuant to s 597 of the Act. Ms Bullen was also in attendance, whereby the following initial exchange occurred:

THE REGISTRAR:    All right. Thanks. And we also have Ms Bullen in court this morning, or this afternoon, rather.

MS BULLEN:    Yes, Registrar, Bullen, initial L, seeking leave to appear for Philip Anthony Feitelson, interested person.

THE REGISTRAR:     Right. Well, he is an interested person only insofar as he may be a prospective examinee, because no orders have yet been made - - -

MS BULLEN:     Yes.

115    Ms Bullen sought to rely on an outline of submissions and an affidavit. Ms Bullen submitted that Mr Feitelson was a contributory and an interested person. As such leave was sought pursuant to r 2.13 of the FCCR for leave to appear without becoming a party.

116    Mr Elks was granted leave for that day’s hearing. This was part because the Plaintiff was appearing by telephone, and Mr Elk’s appearance on that day, may have facilitated communication.

117    The Registrar then had the following exchange with Ms Bullen and although lengthy it is worth setting out in full:

THE REGISTRAR:     All right. Before I take matters further, I’m just going to make some inquiries of Ms Bullen just to see what her intentions were in respect of seeking leave to appear today, just so I can deal with all matters in whatever appropriate order it may be. So I will come back to you to have a say if you wish to have a say, Mr Elks, in due course, okay?

MR ELKS:     Thank you, Registrar.

THE REGISTRAR:     All right. So, Ms Bullen.

MS BULLEN:     Thank you, Registrar. The extent of the submissions on behalf of Mr Feitelson today are limited to the correct provision of the Corporations Act, under which the application for a summons to be issued to Mr Feitelson should be sought. As I explained in my affidavit, we had – there was a solicitor from Colin Biggers & Paisley who attended the last hearing. And there was indication at that hearing that a summons would be sought under 596A for Mr Feitelson, and the nature of the submissions are that the correct provision is 596B for Mr Feitelson and all of the directors that weren’t appointed as at September 2022.

THE REGISTRAR:     So, your application solely though, in respect to Mr Feitelson, as opposed to the other directors?

MS BULLEN:     Yes, Registrar. But what applies to Mr Feitelson would apply to the other directors.

THE REGISTRAR:     Is that submission made because, temporally speaking, they weren’t directors within the relevant period of time going back the two years from the date – the 513C date?

MS BULLEN:     Yes. Well, Registrar, we say it’s not the 593C – sorry, I have that date. It’s - - -

THE REGISTRAR:     I don’t have the date either, but when one goes back - - -

MS BULLEN:     Sorry. Yes.

THE REGISTRAR:     - - - from the date of the administration, some of them – and many of them – were, in fact, directors within that two-year window. I think – and, look, I haven’t looked at this since the last occasion, so everyone needs to excuse my lack of photographic memory of the precise dates. The issue with Mr Feitelson, so far as I understood it, was that he may not necessarily have been a director – or he may have been, I can’t recall precisely at this point – but there was a submission made that he was an individual who was concerned in the making of decisions that materially affected the financial circumstances of the company pursuant to section 9 something, and I think it proceeded on that basis in the alternative.

MS BULLEN:     The substance of our submissions, Registrar, is that the correct date for the purpose of 596A is the date the application was filed, not the – there’s no relevant administration or liquidation on foot that would make it any other day other than two years before the application was filed. So, 596A talks about an examinable officer, who – an examinable officer of the corporation, or was during or after the two years ending on the 513C day in relation to – if the company is in administration – talks about whether there’s a DOCA when it has been wound up. In our submission, none of those apply. So it’s subsection B4, otherwise when the application is made.

THE REGISTRAR:     Well, where one ultimately then gets to, though, is that, you know – I mean, the summons still would issue, it’s just under which particular provision and whether or not they’re a mandatory examinee in that sense or otherwise a discretionary examinee.

MS BULLEN:     Exactly.

THE REGISTRAR:     And is then going to be challenged that they ought not be summonsed pursuant to 596B, because - - -

MS BULLEN:     Exactly, yes. It’s about the bar that has to be reached by the plaintiff, and it’s a lower bar for 596A, and we would say that that doesn’t apply to Mr Feitelson, so they have to satisfy the court that he’s an appropriate examinee under 596B.

THE REGISTRAR:     Okay. All right. Well, I need to obviously take some time to have a look at the submissions. Were there any further submissions you want to make about that point?

MS BULLEN:     No, thank you, Registrar.

THE REGISTRAR:     Okay. And I should – just for the purpose of the record – say that my inclination is to grant you leave, or at least to make these particular points. Do you oppose me granting leave to Ms Bullen to make these points, Mr Elks?

MR ELKS:     No. No, that’s fine. I’m sure they will come up at some point, so we will deal with them then. Although I do have some responses to them.

THE REGISTRAR:     No, undoubtedly you do. So, if there’s nothing further from Ms Bullen, I will hear from you about what she has just said.

118    The Registrar then heard from Mr Elks on what should be regarded as the relevant date for the purposes of s 596A and permitted Ms Bullen to reply. In essence Ms Bullen’s submission was that the relevant date was based on s 596A(b)(iv), being two years ending on the date when the application was made, being 6 September 2022. Ms Bullen expressly stated that she was not instructed to act for the other directors.

119    At the conclusion of the hearing on 6 November 2024, the Registrar did not make orders but adjourned the hearing to consider further the submissions and material.

120    In relation to the 6 November 2024 hearing, Mr Elks also relies on an email chain which was marked as exhibit 5 during the hearing (14 November email). The 14 November email was relied on for two propositions, first that the hearing on 6 November 2024 was not ex parte and secondly that the Registrar had decided the matter on 14 November 2024 and hence any disclosure obligation would have been at an end at this date.

121    The 14 November email is actually an email chain. It commences (at the end of the chain, dated 6 November 2024 at 1.19pm) with Ms Bullen emailing the Assistant to the Registrar indicating an intention to seek leave to appear at the hearing on that day, 6 November 2024. To facilitate the hearing, noting the videoconference, Ms Bullen also emailed the material that was proposed to be handed up at that hearing (at 2.14pm on 6 November 2024). The Assistant to the Registrar forwarded the emails and materials to the Plaintiff (6 November 2024 at 3.29pm). The 14 November email continues (but again working backwards in the chain), in that after the hearing Mr Elks emailed the assistant to the Registrar seeking to make further submissions (6 November 2024 at 3.59pm). Ms Bullen was copied to that email. Ms Bullen provided a short reply noting that the further submissions were unsolicited and asking if the Registrar would like further written submissions (6 November 2024 at 4.06pm). The next email in the chain is that of 14 November 2024 and relevantly is addressed to the Plaintiff, Mr Elks and Ms Bullen (and copied to Mr Williams and another person at CBP).

122    It is the earlier emails in the chain of the 14 November email, which are relied on by Mr Elks, to submit that further arguments as between Ms Bullen (for Mr Feitelson) and Mr Elks for the Plaintiff, took place. This, it is said, supports Mr Elks submission that the proceedings were no longer ex parte.

123    The matter was again heard by the Registrar on 26 November 2024. The Registrar observed on 26 November 2024 that the matter was listed for two purposes, that is to firstly deal with the interlocutory application of Mr Elks who was seeking to join the public examination commenced by the Plaintiff. Secondly, to consider the Plaintiff seeking to have Mr Elks act as her agent. No one else appeared on the hearing on 26 November 2024.

124    Relevantly, the matter was before the Registrar again on 9 January 2025, whereby only the Plaintiff and Mr Elks appeared.

125    The appearance by Ms Bullen on 6 November 2024 was to make submissions regarding the proper construction of s 596A of the Act, in relation to the relevant period to be applied. Ms Bullen expressly informed the Court that she did not have instructions to appear for any other director. On this basis, I do not accept that the submission of Mr Elks that Ms Bullen was also appearing for and on behalf of any other director. Ms Bullen appeared for Mr Feitelson only.

126    Ms Bullen did not make wide ranging submissions. The submissions were focused upon the construction and application of s 596A as it might apply to Mr Feitelson, a past director. Further, the Affidavit relied on of Ms Bullen annexed a complete historical ASIC search of Moreton Resources dated 23 April 2024, amongst other material. This material was only directed towards the interpretation of s 596A and only in relation to Moreton Resources, not MRV.

127    The leave granted to Ms Bullen to appear on 6 November 2024 was only to appear on that occasion, being 6 November 2024. It was not leave given at large or leave to appear generally in the proceedings.

128    Ms Bullen did not have access to the OA or any of the affidavits relied on by the Plaintiff. Mr Feitelson was also not a named party in the proceedings. The leave sought and granted to Ms Bullen under r 2.13 of the FCCR expressly permits a person who, relevantly is a contributory or an interested person to be heard without becoming a party to the proceedings. That leave was also only granted on a limited basis and Mr Feitelson was not joined to the proceedings. As was observed by Barrett J in Re Centro Properties Ltd and CPT Manager Ltd in its Capacity as responsible entity of Centro Property Trust (2011) ACSR 131; [2011] NSWSC 1171 at [67]:

…Although objectors were represented and made submissions on matters of interest to them, the application remained an ex parte application giving rise to a responsibility of the applicants to bring to the court’s attention all matters that could be considered relevant to the exercise of its discretion: Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72…

129    Finally, the additional emails before and after the hearing on 6 November 2025 to 14 November 2024, being Exhibit 5 do not change the characterisation of the hearing. The emails by Ms Bullen prior to the hearing, were simply to advise of an appearance and provide material electronically, which was proposed to be handed up at the hearing. The additional email of Mr Elks, after the hearing was not a continuation of the hearing and was not a continuation of the arguments. A ‘hearing’ means any hearing before the Court: Schedule 1 of the FCR. Sending emails does not constitute a hearing before the Court. This would be contrary to principles of open justice. Further, no leave was granted for the provision of the gratuitous submissions by Mr Elks in his email of 6 November 2024 at 3.59pm. The time and place for making submissions and presenting arguments is at the hearing before the Court, not in communications after the hearing and without leave: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [192] (McHugh ACJ, Gummow, Callinan and Heydon JJ) ; see also Frugtniet v Secretary, Department of Social Services (2021) 285 FCR 159; [2021] FCAFC 127 at [85] (Wheelahan and Snaden JJ). Such a course is “unsatisfactory” and “impermissible”: NT Power at [192]. The orthodox approach is that such submissions are not taken into account: In the matter of Tang & Cheung Investments Pty Ltd [2025] NSWSC 817 at [13] (Brereton J); In the matter of Asbestos Injuries Compensation Fund Limited (and Workcover Queensland) (No 2) [2024] NSWSC 1238 at [4] (Rees J).

130    For all of these reasons, I am satisfied that neither the appearance of Ms Bullen on 6 November 2024 nor the emails before and after the hearing, changed the nature of the hearing. The hearing of the OA was and remained ex parte.

131    Then, to Mr Elks’ second argument regarding the 14 November email. Mr Elks submitted that on the basis of the 14 November email, the Registrar had decided the matter on 14 November 2024 and therefore any obligation to adduce further material was at an end after this date.

132    The 14 November email, stated as follows:

Good afternoon,

QUD536/2024 - IN THE MATTERS OF MORETON RESOURCES LIMITED (RECEIVERS APPOINTED) AND MRV METALS PTY LTD (RECEIVERS APPOINTED)

The Registrar has made a determination regarding the summonses sought under 596A and 596B of the Corporations Act 2001.

The Registrar will issue summonses to the following persons as follows:

596A

•    Mathew Leslie Joiner

•    Darryl Edward Kirk

•    David Michael Orr

•    Grant Dene Sparks

596B

•    John Kevin Haley

•    Brett Garland

•    Philip Bryant

•    Tristan Garathe

•    Phillip Anthony Feitelson

•    Lois Bullen of Colin Biggers & Paisley

•    Glen Williams of Colin Biggers & Paisley

•    Brett Van Staden formerly of Colin Biggers & Paisley

•    Angus Murray of Irish Bentley Lawyers

The Registrar is considering the orders for production separately and you will be notified of the decision in due course.

The Registrar will review the Relevant draft summonses provided by Ms Elks on 7 November 2024 and the plaintiff will be notified of any amendments to be made before filing the summonses.

The Orders issuing the summonses and orders for production will be made at the same time.

Kind Regards

….

[Assistant to the Registrar]

133    The CBP Parties submitted that the effect of this submission by Mr Elks was that the Orders entered on 8 January 2025 were beyond recall by 14 November 2025.

134    There may be some force in the CBP Parties’ submission. The submission made by Mr Elks seems to be that based on the language of the 14 November email, the Orders took effect that day, and because the Orders were effectively made on 14 November 2024, that discharged any further disclosure obligations.

135    Although the opening sentence of the email appears to be a final decision of the Registrar, the balance of the email uses prospective language. However, the language used in the email itself is not determinative. It is important to observe that it is an email, that is, correspondence from the Assistant to the Registrar.

136    The Order made by the Registrar, upon which the seal of the Court has been affixed is dated 8 January 2025. The date of effect of an Order is the date upon which the Order is made: r 39.01 and r 2.01(2)(b) of the FCR. The Order of the Registrar does not bear the earlier date of 14 November 2024.

137    Moreover, there were further hearings of the OA, in Court by the Registrar on 26 November 2024 and 9 January 2025. If Orders were made on 14 November 2024, these hearings would have been unnecessary, the Registrar having exercised his jurisdiction.

138    Mr Elks’ submission in this regard cannot be accepted because the 14 November email was no more than a communication from the Registrar’s assistant regarding the proceedings. This is reinforced by the Registrar’s own observations on the 26 November 2024 hearing that:

THE REGISTRAR: So let’s deal with the balance of the issues then, which is where things are at with the summonses and the orders for production. So I’ve given to my legal case manager, you know, instructions to give a provisional indication of where I landed regarding the summonses themselves. So ultimately where I landed there was that only 596A summonses were issued to Mr Joyner, Mr Kirk, Mr Orr and Mr 15 Sparks [sic], and the balance would be 596B summonses. Those summonses haven’t yet issued, but what I propose to do is to speak through some amendments to the summonses themselves, and I’m going to speak to the orders for production. …

(emphasis added)

139    The Order did not issue until it was properly issued and sealed by the Court on 8 January 2025. As such this circumstance does not change the nature of the hearing, it remained ex parte. Further, it did not of itself alter the obligation owed by the Plaintiff on the ex parte hearing.

The Disclosure Required?

140    The Plaintiff is critical of the CBP Parties (adopted by all Examinees) description of the duty required by the Plaintiff on the ex parte hearings (in the conclusion of their written submissions) as a “duty to make full disclosure”. The Plaintiff disagrees with this formulation, submitting that the content of the duty was to provide to the Court all material which might impact upon the Order sought, including all material which might lead the court to refuse the application. However, the Plaintiff accepts that she has, as applicant on an ex parte application, a duty of candour to bring to the attention of the court “all material facts which [the absent] party would presumably have brought forward in [their] defence to that application” (with reference to Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72 and International Finance Trust Company Ltd v New South Wales Crimes Commissioner (2009) 240 CLR 319; [2009] HCA 49 at [131] (Hayne, Crennan and Kiefel JJ). Hayne, Crennan and Kiefel JJ were in dissent, however the re-statement of principle at [131]-[133], from Edison is uncontroversial.

141    It is appropriate to commence a consideration of the duty required in an ex parte application as described by Issac J in Edison at 681-682 which:

…establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligations unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. I add the word “almost” in deference to such an exceptional case as Holden v Waterlow…

142    Lander J, with whom Cox and Bleby JJ agreed, in Southern Equities at 422 described the position as follows, in the context of an examination summons:

Was there full and frank disclosure?

An application for an examination summons is made ex parte. Consequently there is a heavy obligation upon the person applying for the examination summons to make full and frank disclosure of all matters which may impact upon the decision to summon a person for examination about a corporations examinable affairs.

There can be no doubt, in my opinion, that a person who makes an application of this kind is under an obligation to bring all facts and material to the court’s attention which might bear upon the order to be made. The applicant has no lesser obligation than that imposed upon a party seeking an injunction ex parte. Indeed, in my opinion, the obligation of frankness and candour is even greater in an application of this kind. That is because, unlike on the return of an interlocutory injunction obtained ex parte, on the return of an examination summons the material supporting the application is not ordinarily made available to the proposed examinee.

Because the proposed examinee, ordinarily, is not privy to the information or material which was used to support the application for the examination summons, the person applying for the examination summons has the very highest obligation relating to frankness and candour and any breach of that obligation, in my opinion, ought to be viewed very seriously by the court.

The obligation is to provide to the court all material which might impact upon the order sought, including all material which might lead the court to refuse the application. The applicant must act in the place of the proposed examinee and therefore draw to the attention of the court anything which might lead the court to refuse the application.

143    Also see the distillation of these principles by S C Derrington J in Capital Options (Aust) Pty Ltd v Hazratwala, in the matter of Weststate Consortium (in liq) [2023] FCA 458 at [29], whereby her Honour described it as there being a “heavy obligation upon the person applying for the examination summons to make full and frank disclosure of all matters which may impact upon the decision to summon a person for examination about a corporations [sic] examinable affairs”. As Sarah C Derrington J observed, the obligation has been variously described as “no lesser than that imposed upon a party seeking an injunction ex parte”.

144    In this context, the observations of Emmett JA, with whom Basten JA and Sackville AJA agreed, in Papas v Grave [2013] NSWCA 308 at [71], are also relevant:

Full and Frank Disclosure

71    A party asking, ex parte, for an injunction is under a duty to bring to the notice of the court all facts material to the determination of the entitlement of that party to the injunction, including facts adverse to that party. It is no excuse for that party to say that it was not aware of the importance of the facts. Utmost good faith is required of a party seeking to induce the court to act in the absence of another party. Thus, a party seeking ex parte relief will fail in its obligation to the court unless it bring forward all the material facts that the absent party would presumably have brought forward in opposing the application. The moving party must state its case fully and fairly and disclose the entirety of the facts relevant to the case. The party moving the court must give the court a faithful statement of its case (Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681-682).

145    I also gratefully adopt the summary of the relevant principles by Digby J in Argyle Building Services Pty Ltd v Franek [2020] VSC 166 at [160], as follows:

160    Accordingly, on an ex parte application seeking a freezing order it is incumbent upon the applicant to make full and frank disclosure of all material matters known to that party or which would have been known to that party if it applied reasonable diligence. Those obligations include:

(a)    the applicant has an obligation to make full and frank disclosure of all material facts;

(b)    the disclosure must include matters which would have been raised by the respondent in their defence if they had been present;

(c)    it is for the Court and not the applicant to decide what is a material fact requiring disclosure;

(d)    the applicant must make proper enquiries before the making of the application, the extent of which enquiries depends on the circumstances of the case;

(e)    the applicant has a duty not only to disclose material facts that are known but material facts which the applicant would have known if they made appropriate enquiries;

(f)    if the applicant fails in its duty to disclose all material facts, the usual outcome will be to discharge the freezing order, regardless of whether the non-disclosure is deliberate or innocent;

(g)    if the freezing order is discharged due to the applicant’s failure to make full and frank disclosure, the applicant may still apply for a further freezing order.

(footnotes omitted)

146    Finally, to these principles should be added the remarks of Allsop J from Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38], which were as follows:

38    In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives.

147    Although the Plaintiff is critical of the CBP Parties’ formulation of the duty in the conclusion of their written submissions, this criticism is unfounded. Earlier in the CBP submissions they make express reference to the duty from Edison at 681-682, International Finance (at [131]); Southern Equities at 422-423; Papas at [71]; Argyle at [160]. The summary formulation of the duty in the concluding paragraph of the CBP Parties’ submission was simply that, a summary. On a proper consideration of all of the written submissions made by the parties, the formulation of the duty owed was relatively consistent.

148    At the level of principle, the duty can be described as follows. An applicant on an ex parte application for an examination summons owes a heavy obligation. It is a duty of frankness and candour, to make full and frank disclosure of all matters which may impact upon the decision to summon a person for examination about a corporation’s examinable affairs. It is a duty to disclose all material matters known to that party or which would have been known to that party, if they applied reasonable diligence. An applicant will fail in this obligation unless they supply the place of the absent party, being the proposed examinee, to the extent of bringing forward and drawing to the court’s attention to all of the material facts which that other person would presumably have brought forward in opposition to that application and may lead the court to refuse the application.

149    A matter is material if it is relevant to the court’s determination, as a matter of substance: Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 at [35] (Gillard AJA, with whom Ormiston and Buchanan JJA agreed). Being materially relevant means it is capable of affecting the decision, not that it would affect the decision: Naidenov, in the matter of 30 Denham Pty Ltd (in liq) [2023] FCA 134 at [11] (Stewart J). That is, a matter will be materially relevant if it could, not would affect the decision. In this context, an analogy to the ‘threshold of materiality’ is apt in the sense that the matter must be such that there is a realistic possibility that it could affect the decision made, not that such possibility is fanciful or improbable: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

The Content of the Duty of Disclosure?

150    Mr Elks submits that either there is no duty of disclosure in making an ex parte application for a s 596A examination summons, or if there is a duty, it is limited as s 596A only requires satisfaction of two matters. Once those two matters (or potentially five matters) are satisfied the examination summons must issue.

151    The first aspect can be dealt with shortly. It would be a remarkable proposition for an applicant on any ex parte application to not owe a duty of candour, of full and frank disclosure to the Court, where such an applicant is moving the Court in the absence of the other party or person, who will be affected by the order sought, to not owe such a duty. It is the ex parte nature of the application which brings with it, the obligation and duty of candour, and full and frank disclosure of all relevant matters which may affect the Court’s decision.

152    What will be relevant, however, will depend on the statutory context. As such, the content of the duty will be affected by the statutory source of the power for the Orders which were made.

153    A mandatory examination summons under s 596A only requires satisfaction of the two criteria (or potentially five matters), for it to issue as of right (subject to the doctrine of abuse of process). Mr Elks argued that in the context of s 596A, it may be expected that any affidavit in support would be confined to only proving the matters that must be established under s 596A and this in turn also affects the content of the duty of disclosure. I accept this submission, it is consistent with the observations of Austin J in Hill v Smithfield Service Centre Pty Ltd (in liq) (2002) 196 ALR 246; [2002] NSWSC 999 at [47], Branson J in Carter v Gartner (2003) 130 FCR 99; [2003] FCA 653 at [25] and Lander J in Simionato v Macks (1996) 19 ACSR 34 at 56 (all referred to in Walton at [153], fn235) In Smithfield, it was held that the applicant for the examination summons had not engaged in any relevant non-disclosure, despite not disclosing his bankruptcy to the Court. That matter was immaterial, given that the Court had no discretion but to issue the summonses, in the circumstances of that case, it being under s 596A of the Act.

154    Edelman and Steward JJ observe (at [153]) in Walton that the statutory scheme contemplates that a Court could make an order pursuant to s 596A without the need for a supporting affidavit, as the criteria might be able to be satisfied from the face of the application itself. However, alternatively, the Court may require a supporting affidavit that confirms satisfaction of the criteria. Edelman and Steward JJ further observe (at [153]) in Walton that as the application in that case was supported by an affidavit, it was not necessary to decide whether r 11.3 should be read down, in accordance with s 596A and s 596C of the Act. As such, an affidavit supporting an application under s 596A is permissible, even though not statutorily required.

155    Rule 11.3(3) of the FCCR requires the originating process for the examination summons, under s 596A or s 596B of the Act, to be supported by an affidavit. The rule does not differentiate between s 596A or s 596B of the Act. This does not expand the criteria to be satisfied, or the duty of disclosure required under a s 596A application, but requires the relevant criteria, so far as is necessary, to be addressed in that supporting affidavit.

156    To this, again from the FCCR, can be added the more general requirement in r 2.4 of the FCCR. Rule 2.4(2) of the FCCR requires an affidavit to support an originating application. Often (as occurred in this case) an application for a s 596A examination summons, is brought by an originating application. An originating application requires a supporting affidavit which includes a search of the records maintained by ASIC, in relation to the company that is the subject of the application. That would be the company about which the examinable affairs are relevant. Rule 2.4(2) requires that search to have been carried out no earlier than 7 days before the originating application is filed. A search of ASIC’s records may also be required to satisfy s 596A(b) that the person sought to be examined is or was an officer or provisional liquidator during the relevant two years period (variously provided for in subsection (b)(i)-(iv)).

157    Finally, then in relation to s 596A of the Act, in terms of the content of the duty of disclosure, there is still a requirement to satisfy the first criteria, that the application is made by an “eligible applicant”. If the application is made by ASIC, this criterion will be met on the face of the application. However, where the applicant is by another, evidence may be required to satisfy this criterion.

158    However, s 596B of the Act is different. Even if the statutory criteria are satisfied the Court retains a discretion and could decline to issue the examination summons. Such discretionary considerations will be informed by the statutory context. Furthermore, the content of the duty of disclosure required, will be informed by those discretionary considerations as the material which will be relevant is that which could affect the decision, as an exercise of that discretion.

159    The content of the duty to make full and frank disclosure (as more specifically described above at [148] and see [140]-[146] above) by way of an application for an examination summons under s 596A is different to that required under s 596B, given the matters relevant to the Court’s consideration on each such application. It is not necessary or appropriate for the purposes of this application to try and fully formulate the content of that duty. This recognition is sufficient to consider the matters raised by the parties.

Compliance with the Duty of Disclosure

160    In this context, it is first necessary to consider how the Plaintiff framed the OA.

161    The OA commenced with:

This application is made under the Corporations Act 2011, with particular reliance upon s 596A and s 596B.

162    That is, the OA expressly referred to and relied on both s 596A and s 596B of the Act. The OA also expressly referred to and relied on the facts stated in the supporting affidavit(s). The Confidential Affidavits variously addressed s 596A and s 596B of the Act. The Plaintiff also relied on an outline of submissions dated 20 October 2024 (October Submissions). The October Submissions were headed “Applicants (sic) Submissions for Issuance of Summons s596A and s596B”. The October Submissions deal with s 596A and s 596B separately, seeking that summonses issue pursuant to s 596A, consistent with the OA, against the people listed in [12] above. The October Submissions sought summonses pursuant to s 596B of the Act, against the people listed in [13] above.

163    However, the Registrar did not make Orders in those terms. The provision pursuant to which, and the persons against whom the summons were ordered are set out above at [30].

164    The Parties’ submissions, in this respect, did not properly delineate between the content of the duty of disclosure required from the Plaintiff and whether it was different depending on whether the summons was issued pursuant to either the s 596A and s 596B of the Act. Although all of the HWLE Parties were summoned under s 596B of the Act and all of the JWS Parties were summoned under s 596A, each sought to also rely on the CBP Parties’ submissions which were relevant to both s 596A and s 596B.

165    In making the applications the Plaintiff did meld the applications together. However, the content of the duty of disclosure is affected by the provision pursuant to which the examination summonses are sought and issued: Smithfield at [47]. Therefore, separate consideration is required, in relation to the content of the duty of disclosure required, and therefore whether there has been any material non-disclosure, as the statutory requirements are different.

166    The CBP Parties have addressed the complaints of inadequate disclosure by reference to each of the hearings and the material then available. The matter was heard by the Registrar on the following dates:

(a)    15 October 2024;

(b)    6 November 2024;

(c)    26 November 2024; and

(d)    9 January 2024.

167    Although the CBP Parties have addressed what they say are the material non-disclosures by reference to particular hearings or particular parts of the evidence, it is important to keep firmly in mind that even if the Plaintiff had not disclosed a material fact on the first occasion, but then did on the next hearing, that may cure any potential material non-disclosure. The CBP Parties submit that no such remedial steps were taken by the Plaintiff to cure any material non-disclosures.

168    The HWLE Parties alleged different additional material non-disclosures. The HWLE Parties do not segment or divide the hearings or evidence but deal with all of the hearings, submissions and evidence together to then submit that there were material non-disclosures, on particular identified bases.

169    The JWS Parties rely on and adopt the submissions as to material non-disclosure of both the CBP Parties (apart from what is later described as the “suitability issues”) and the HWLE Parties. Further each of the CBP Parties and the HWLE Parties adopt and rely on each other’s submissions as to material non-disclosure. Although the CBP Parties did not rely on the allegation regarding the Plaintiff not being a shareholder of either Moreton Resources or MRV and the HWLE Parties did not rely on the “suitability issues”. Apart from these two issues, all of the Examinees relied on all of the following alleged material non-disclosures, without seeking to identify whether it would apply under s 596A or s 596B of the Act.

170    It is convenient to deal with the HWLE Parties’ submissions first and then the CBP Parties’ submissions regarding non-disclosure. In the result of any non-disclosure on the bases of either the HWLE Parties’ submissions or the CBP submissions, the effect of this will be considered separately, as to whether it is material.

HWLE Parties’ Categories of Non-Disclosures

(1)    Companies are not under “external administration”

171    The Examinees submit that neither Moreton Resources nor MRV were under “external administration” as that term is defined in Schedule 2, s 1-5 of the Act, as the only appointment that remains is that of a receiver. On the five criteria identified by Edelman and Steward JJ in Walton at [158], this must be satisfied for the issue of an examination summons under s 596A of the Act.

172    The term “external administration” is not defined in s 9 of the Act, however, “external administrator” is defined. It provides essentially that it has the same meaning as in Schedule 2, other than in Chapter 5. Chapter 5 of the Act is headed “External Administration”. Sections 596A and 596B are within Part 5.9, Chapter 5, which is headed “Miscellaneous”. Different types of external administration are dealt with in different Parts within Chapter 5. Those include Part 5.2 “Receivers and other controllers of property of corporations”, Part 5.3A “Administration of a company’s affairs with a view to executing a deed of company arrangement”, Part 5.4 “Winding up in insolvency”, Part 5.5 “Voluntary winding up” and Part 5.6 “Winding up generally”.

173    Although neither s 596A or s 596B contain the words “external administration”, Edelman and Steward JJ in Walton held that s 596A (which was the provision under consideration) had five criteria which included that the company in question must be subject to some form of external administration at [153]. However, the differences as between s 596A and s 596B in terms of being mandatory or discretionary examinations does not support a proposition that s 596A would be subject to a requirement that the company in question must be subject to some form external administration, but s 596B would not. On the bases explained by Edelman and Stewart JJ in Walton at [158] for the application of this fifth criterion, such reasoning would be equally applicable to s 596B of the Act. As such, I accept that both s 596A and s 596B of the Act requires that the company in question must be subject to some form of external administration.

174    Gageler J explained in Walton at [119] and Palmer at [96], in this context, external administration extends beyond circumstances of winding up a corporation and includes, relevantly when some but not all of the property of a corporation is in receivership.

175    Moreton Resources and MRV were both in receivership at the relevant time. Annexed to the First Plaintiff Affidavit was an incomplete (described as being pages 1-8) Current & Historical ASIC Company extract search for Moreton Resources. On the first substantive page of that search, which was dated 26 August 2024, in the current section the company’s status was recorded as “Externally Administered”. The search refers the reader to another section of that search which contains the details of the “External Administration and/or appointment of Controller”. However, as the search was incomplete, that section was not included as part of the First Plaintiff Affidavit.

176    Also annexed to the First Plaintiff Affidavit is a complete Current & Historical ASIC Company extract search for MRV. On the first substantive page of that search, which was dated 26 August 2024, in the current section the company’s status was recorded as “Externally Administered”. The search refers the reader to another section of that search which contains the details of the “External Administration and/or appointment of Controller”. In that section of the search, the receivers Mr Kirk and Mr Joiner are recorded with an appointment dated of 25 September 2020.

177    The Third Plaintiff Affidavit contained what was described as an “abbreviated” copy of the Current & Historical ASIC Company search for Morton Resources (described as being pages 1-30) dated 26 August 2024. This copy of the search contained the section headed “External Administration” and recorded that Mr Kirk and Mr Joiner had been appointed receivers on 25 May 2022.

178    The incomplete search, and the evidence of the receivers being appointed was a matter expressly dealt with by the Plaintiff, to the Registrar and on the first return date. It is clear from the transcript that the Registrar was handed a more complete copy of the ASIC search for Moreton Resources. The Registrar was taken to the dates of the appointments of the receivers for each of Moreton Resources and MRV, in the respective ASIC searches. Although it was in the context of satisfying the relevant dates for the purposes of s 596A(b), it would also satisfy the requirement of the Companies being in external administration. Therefore, there was evidence before the Registrar, which was the subject of express consideration, that each of Moreton Resources and MRV had a receiver appointed, being Mr Kirk and Mr Joiner.

179    This complaint is unfounded and does not support a finding that there was non-disclosure by the Plaintiff on the ex parte hearing for the examination summonses, either under s 596A or s 596B of the Act, that each of Moreton Resources and MRV were not relevantly under external administration at the time of the applications. Receivers had been appointed and there was evidence of such appointments before the Court, which was reasonably identified to the Registrar and expressly considered.

(2)    DOCA entered in 2022

180    The Examinees submit that Moreton Resources and MRV entered into the DOCA in 2022 which compromised all unsecured creditors’ claims and there was non-disclosure to the Registrar, regarding the DOCA and its effect.

181    The October Submissions at [1] and [2] make express mention of Moreton Resources and MRV entering a DOCA, with [1] referencing the Third Plaintiff Affidavit. Neither the October Submissions nor the Third Plaintiff Affidavit were available on the first return date, on 15 October 2024. The October Submissions were lodged for filing on 20 October 2024 and accepted for filing on 6 November 2024. It is apparent from the transcript that the October Submissions and Third Plaintiff Affidavit were available to the Registrar on 6 November 2024. It was submitted on behalf of the Plaintiff that the Third Plaintiff Affidavit was to answer some of the queries relating to s 596B of the Act, and those proposed examinees.

182    The October Submissions direct the reader to the Third Plaintiff Affidavit stating “As referenced in the Third Affidavit of Louise Mary Elks pages 254 to 292”. Given the issue, it is worth setting out those passages from the October Submissions:

BACKGROUND:

1.    Moreton Resources Limited (Receivers Appointed to assets pre 3 May 2022) (MRL) was an ASX listed Company, which in late 2020 was removed from the ASX due to it entering Voluntary Administration and later entering Liquidation, however due to a Deed of Company Arrangement (DOCA) and a Federal Court Order issued in December 2022, remains registered and continues to operate as a Corporation, as defined by the Corporations Act 2001 (Cth) (CA), with the existing Board being handed back “Full Control” as specified in the said DOCA and subsequent Court Order effectuating that DOCA and the said terms of that instrument.

As referenced in the Third Affidavit of Louise Mary Elks pages 254 to 292

2.    That same DOCA purports to preserved the rights of the “Receivers” whom existed at the time being Cor Cordis Pty Ltd, who purport to control the Assets of MRL and MRV Metals Pty Ltd (Receivers Appointed to assets pre 3 May 2022) (MRV) up to the relevant date, being 3 May 2022.

183    The Third Plaintiff Affidavit contains the usual contents table which lists and describes the annexures to the Affidavit by reference to the paragraph numbers and page numbers of the annexures. The item commencing at page 254 is described in the table of contents for the annexures as follows:

Annexure “LE3-015”, is a copy of the Circular Resolution passed on 16 October 2024 by the Board of Moreton Resources Limited relating to legal privilege.

184    Annexure “LE3-015” is said to be relevant to paragraph 14. That paragraph states as follows:

As exhibited and marked LE3-014

14.    A Circular Resolution was passed on the 16 October 2024 by the Board of Moreton Resources Limited and for MRV Metals Pty Ltd for all matters pertaining to the Companies that legal firms Irish Bently Lawyers and Colin Biggers and Paisley acted or provided advice on, for the benefit either directly or indirectly for Moreton Resources Limited and/or MRV Metals Pty Ltd for the period 1 July 2018 to the current date of 16 October 2024.

185    Neither the description of the annexure in the contents part of the Affidavit or the substantive paragraph of the Affidavit provide any descriptor of or reference to the DOCA. In the annexures to the Third Plaintiff Affidavit, after the annexure identifier document (which is at page 254) at page 255 is a document described as a “Directors Decision via Circular Resolution”. It is executed by the directors of Moreton Resources, being Mr Elks, the Plaintiff, Mr Nigel Slonker and Mr Aaron Nicol. It is consistent with paragraph 14 of the Third Plaintiff Affidavit. This document contains a section dealing with “Authority” which refers to the Board’s ability to act, in accordance with the DOCA. The resolution does not state or suggest that the DOCA referred to, is attached or otherwise accompanying the resolution. Then from page 257, without a separate identifier, the DOCA is annexed. The DOCA is dated 8 June 2022. Further the last page in this annexure bundle of “LE3-015” is an Order of Burns J, in the Supreme Court of Queensland dated 2 December 2022. Relevantly, that Order declared that the DOCA dated 8 June 2022 to have been “wholly effectuated” that is, that its terms had been fulfilled.

186    The references to the October Submissions and the Third Plaintiff Affidavit, at the hearing on 6 November on behalf of the Plaintiff was only to aspects seeking to establish that Ms Bullen and Mr Murray, while also making a passing reference to Mr Williams, were relevant examinees under s 596B of the Act.

187    Ms Bullen, in the context of seeking to assist the Court with the relevant date for the purposes of s 596A(b) makes a passing reference that “it” executed a deed of company arrangement but that had been terminated.

188    However, the Plaintiff does not make any oral submissions regarding the DOCA, its terms or its effect. Furthermore, the Plaintiff did not take the Registrar to any of the following:

(a)    Paragraphs [1] or [2] of the October Submissions;

(b)    Paragraph [14] of the Third Plaintiff Affidavit;

(c)    Annexure “LE3-015” from page 257, or any part of the DOCA;

(d)    Annexure “LE3-015” at page 305 being the Order of Burns J in relation to the DOCA.

189    The Plaintiff does make a passing reference to the DOCA in the October Submissions. However, the reference in the October Submissions does not provide:

(a)    any date for the commencement or end of the DOCA (including any reference to the order of Burns J);

(b)    the terms or general effect of the DOCA, including the appointment of directors;

(c)    that the Acquiring Company, as defined in the DOCA, was MRL Moreton;

(d)    that MRL Moreton was controlled by Mr Elks;

(e)    that the Deed Fund was limited to only the Acquiring Company’s Contribution;

(f)    that the DOCA bound all creditors, save for secured creditors; or

(g)    who executed the DOCA.

190    To comply with the duty of disclosure on an ex parte application, it is not sufficient to state matters obliquely or indirectly. Nor is it sufficient to include documents in voluminous annexures and merely not mis-state the position. As Allsop J observed in Walter Rau at [38], the obligation is to squarely put the other sides’ case. It is not for the Court to search out, organise and bring together what can be said on a respondent’s behalf: also see Mineralogy Pty Ltd v The State of Western Australia [2020] QSC 344 at [77]-[82] (Martin J); Perpetual Trustees Company Ltd v Attorney-General of New South Wales (2018) 17 ASTLR 126; [2018] NSWSC 1456 at [41] (Leeming JA); Madsen v Darmali [2024] NSWSC 76 at [124]-[127] (Rees J), which both applied Walter Rau. This is the duty and obligation of the Plaintiff on the ex parte application.

191    The Plaintiff did not disclose or otherwise bring to the Court’s attention, the DOCA, or any of the relevant details (terms or effect) of the DOCA.

192    However, s 596A is described as only requiring the satisfaction of two (or five) criteria, before the examination summons is mandatorily to issue, as of right (subject to the doctrine of abuse of process): Walton at [90]-[92] and [152]; Palmer at [12]-[13] and [94]; Kimberley Diamonds at [20]. Those criteria are set out above. Whether or not Moreton Resources or MRV was subject to a DOCA would not affect the satisfaction of those criteria. Further, no particular reason needs to be established for seeking the mandatory examination summons, nor that the proposed examination would have practical utility, nor that the examination would or would likely produce any particular result, nor that the examination would be in any sense desirable or efficacious: Kimberley at [21]. Therefore, the non-disclosure of the DOCA could not affect the mandatory issue of those examination summons under s 596A. As such, in this sense there has not been any material non-disclosure.

193    However, there are important differences between s 596A and s 596B: Kimberley Diamonds at [23]; Walton at [91] and [152]. Section 596B confers upon the Court a discretion. The Court retains a discretion and is not required to issue the summons, even if the statutory criteria under s 596B are satisfied.

194    It is not possible to know what the Registrar would have done, had the fact that the DOCA was entered, what its terms were and the like, had of been bought to his attention: Bell Group at [22]. To be a material non-disclosure it need only be capable of affecting the decision, in the sense that there is a realistic possibility that it could affect the decision, not that it would affect the decision: Naidenov at [11]. The entering into and affect of the DOCA could have affected the exercise of the discretion of the Registrar. This is because the discretion is unfettered: Pitman at [41]. As such, the fact that the DOCA was entered in 2022 may have been relevant in considering whether the discretionary examination had any practical utility of was sufficiently justified: Kimberly at [24].

195    As such, I am satisfied that the Plaintiff failed materially to comply with her duty of disclosure, in relation to the discretionary examination summons, in not disclosing the DOCA and bringing it expressly to the Court’s attention.

(3)    Mr Elks’ engagement of Mr Hambleton

196    The Examinees submit that Mr Elks had obtained consulting services from Mr Hambleton which examined matters relevant to the liquidation and assets of the Companies and also advised on the DOCA, prior to the appointment of Mr Hambleton (with Ms Chua) as Administrator.

197    Mr Hambleton and Ms Chua were appointed Administrators by the liquidators, Mr Orr and Mr Sparks. Mr Elks provided a statement of independence for the appointment of Mr Hambleton and Ms Chua, relevantly to Moreton Resources and MRV dated 14 March 2022. Mr Elks stated that he did “not have any prior relationship” with those of the firm, including Mr Hambleton and Ms Chua.

198    However, the declaration of relationships of Mr Hambleton and Ms Chua outlined previous engagements they, or a member of the Firm had undertaken for Mr Elks. This included that during the period 8 February 2021 to 4 February 2022 Mr Hambleton provided consultancy services for Mr Elks and on 23 November 2020 Mr Hambleton was engaged to prepare an expert report, commenting on the analysis and decisions made by Mr Orr and Mr Sparks as voluntary administrators. Mr Hambleton and Ms Chua stated that they did not believe that those matters effect their independence.

199    Neither Mr Hambleton nor Ms Chua was the subject of any examination summons.

200    This submission was not developed as to how any prior engagement of Mr Hambleton by Mr Elks, not the Plaintiff would be relevant, in terms of the Plaintiff’s duty of disclosure on the ex parte applications for examination summons. No summons was sought as against Mr Hambleton.

201    Although the Plaintiff sought leave for Mr Elks represent her, as agent and sought leave for Mr Elks to participate in the examinations it was still on the basis of the application by the Plaintiff. The quoted part of the statement of independence by Mr Elks is difficult to reconcile with the declaration of relationships by Mr Hambleton and Ms Chua.

202    However, the applications for examination summonses were not applications for or by Mr Elks, it was an application by the Plaintiff. It is not clear how any previous engagement by Mr Elks of Mr Hambleton would have any relevance to the Plaintiff’s application for examination summons.

203    This complaint is unfounded and does not support a finding that there was non-disclosure by the Plaintiff on the ex parte hearing for the examination summonses, either under s 596A or s 596B of the Act. That Mr Elks may have engaged Mr Hambleton was not relevant.

(4)    The Plaintiff was not a current shareholder of either of the Companies

204    The HWLE Parties and JWS Parties submit that the Plaintiff was not a shareholder of either Moreton Resources or MRV, at the time of the hearing before the Registrar but the Plaintiff represented to the Registrar that she was a shareholder.

205    The First Plaintiff Affidavit states at [1]:

I am the applicant in this process, due to being a Director, a Shareholder and a Contributor of Moreton Resources and MRV Metals Pty Ltd.

206    Three annexures are listed under [1] of the First Plaintiff Affidavit, which suggest those annexures support of the statements in [1]. The first is “LE-01” being pages 1-8 of the ASIC search of Moreton Resources, but that doesn’t include the shareholders. The second is “LE-02” which is the ASIC search for MRV which does include shareholder information. It records that Moreton Resources is ultimate holding company and that it holds all of the shares in MRV. That is, that the Plaintiff is not a shareholder of MRV. The third is “LE-04” which is said to be a single page extracted from the 2019 Annual Report of Moreton Resources confirming shareholder status. This single page document is headed:

Moreton Resources Limited

Shareholder Information

30 June 2019

207    It then states that as at 24 September 2019, the Plaintiff was a shareholder holding 0.85% (26,544,216 shares) in Moreton Resources. It is unclear why this historical document was annexed to the Plaintiff’s Affidavit. At best it is irrelevant, at worst it is potentially misleading.

208    The Third Plaintiff Affidavit annexed what was described as an abbreviated version (being pages 1 - 30 only) of the 26 August 2024 ASIC search for Moreton Resources. This search provides that MRL Moreton was the ultimate holding company of Moreton Resources and states that there are 3,479,902,207 ordinary shares. From this version of the ASIC search it is clear that the Plaintiff is not a shareholder of Moreton Resources.

209    In the Fourth Plaintiff Affidavit, the Plaintiff swears that Moreton Resources is the ultimate holding company of MRV and that MRL Moreton is the shareholder of Moreton Resources. The Fourth Plaintiff Affidavit was not before the Registrar, it is an affidavit filed subsequently and in opposition to the Examinees applications to discharge or set aside the examination summons. While the Plaintiff does provide evidence of the correct shareholding, in the Fourth Plaintiff Affidavit, she does not refer to the First Plaintiff Affidavit and does not seek to explain or correct her earlier Affidavit about being a shareholder of each of Moreton Resources and MRV. The Plaintiff also does not explain why a document dated 24 September 2019 was annexed to the First Plaintiff Affidavit which did show the Plaintiff as a shareholder.

210    The CBP Parties refer to the evidence of Mr Elks, when he was examined on 27 November 2024. That evidence suggests that shares were issued to the Plaintiff in July or August, November or within the last six months (from November 2024). However, if shares were issued to the Plaintiff in either July/August or within the previous six months (unless such shares were issues from 26 August onwards) these would have been stated on the 26 August 2024 ASIC search.

211    It is not necessary to reach a concluded view about whether or not the Plaintiff was actually a shareholder of Moreton Resources, at the time she swore the First Plaintiff Affidavit. This is because the material is at least incomplete or inconsistent. As such, the Plaintiff should have completed the evidence before the Registrar and corrected the position, in relation to any shareholding in Moreton Resources or MRV. In relation to the Plaintiff’s stated shareholding in Moreton Resources, if shares were issued to the Plaintiff after the date of the First Plaintiff Affidavit, it was incumbent upon the Plaintiff to correct the First Plaintiff Affidavit, before the Registrar.

212    Further, in relation to MRV, although the ASIC search provided evidence of the shareholding, the Plaintiff should have taken the Registrar to that evidence and corrected or explained paragraph [1] of the First Plaintiff Affidavit: Walter Rau at [38]. The Plaintiff did not do so.

213    The Plaintiff submits however, that even if the statement regarding her shareholding was wrong (which is not accepted) it would not have been a material non-disclosure. The Plaintiff submits this on the basis that it is not a requirement for the examination that the Plaintiff be a shareholder, what was required, which was fulfilled by the Plaintiff, was that she be an “eligible applicant”.

214    By the Plaintiff stating she was a director and shareholder of Moreton Resources and MRV, she was representing a certain position and relationship between herself and the Companies. This was not to satisfy the criteria of being an “eligible applicant” this is addressed elsewhere and would not satisfy the requirements of being an eligible applicant, in any event. However, based on the document dated September 2019, it is apparent that the Plaintiff was seeking to advance the position that she was a shareholder. Although the abbreviated ASIC search of Moreton Resources and the ASIC search of MRV annexed in the Third Plaintiff Affidavit state the correct shareholding position, the Plaintiff did not seek to correct or explain her earlier evidence. Further the Plaintiff also did not specifically bring this to the Court’s attention.

215    It is not possible to know what the Registrar would have done, had the corrected position regarding the Plaintiff’s shareholding been bought to his attention: Bell Group at [22]. To be a material non-disclosure it need only be capable of affecting the decision, in the sense that there is a realistic possibility that it could affect the decision, not that it would affect the decision: Naidenov at [11].

216    The Plaintiff’s shareholding of itself, could not have affected the satisfaction of the statutory criteria to issue the mandatory summonses (subject to an abuse of process) under s 596A.

217    However, as an exercise of discretion under s 596B, the Plaintiff’s shareholding could have affected the decision. This is because the discretion is unfettered but must be exercised judicially: Pitman v Park (Liquidator), in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887 (Derrington J) at [41]. The Plaintiff’s shareholding could have affected the exercise of discretion because that may have impacted on the purpose of the examinations. Ultimately the purposes of the examinations may have been for the benefit of the shareholders and that was not the Plaintiff. The ultimate shareholder was MRL Moreton. Mr Elks was the sole shareholder and director of MRL Moreton.

218    As such, I am satisfied that the Plaintiff failed materially to comply with her duty of disclosure, in relation to the discretionary examination summons under s 596B, in not disclosing and explaining that she was not a shareholder of Moreton Resources and by not expressly bringing this matter (by way of a correction and explanation) to the Court’s attention. This was also include explaining why the page from the 2019 Annual Report of Moreton Resources was included in the First Plaintiff Affidavit.

(5)    Significant information available & extensive litigation

219    The Examinees submit that there is already a significant amount of information available to the Plaintiff about Moreton Resources and MRV following the many pieces of litigation and complaints that have taken place. A similar submission is made by the CBP Parties with reference to the October Submissions and the Third Plaintiff Affidavit. It is submitted that the Plaintiff had a “plethora” of information about the examinable affairs of Moreton Resources and MRV. The HWLE Parties also advance a sixth contention regarding the extensive litigation as between Mr Elks and the Companies. In so far as this relates to the quantity of the information available to the Plaintiff it will be considered under this heading

220    Consideration of this issue is about the amount or quantity of material that the Plaintiff had or had access to. There are separate complaints and submissions about the adequacy of disclosure concerning other proceedings, certain agreements and otherwise, which are considered below.

221    The Plaintiff submitted that the fact that there are significant amounts of information following the many pieces of litigation and complaints was not a basis for refusing to issue the summons. Further, the Plaintiff submitted it was evident from the material relied upon that there had been other litigation, but that the Plaintiff was not a party to that litigation.

222    It is clear by the volume of material filed on these applications to review or discharge the summonses, that not all of the material that the Plaintiff had or had access to was disclosed to the Registrar.

223    On an application for a mandatory examination summons, it is the wrong approach to try and pre-empt the examination by adducing evidence directed towards demonstrating, say in connection with investigating whether or not a cause of action might exist, that they could have no liability to the company. That is, “it is not open to the Applicants to attempt to pre-empt public examinations … by adducing evidence that they contend covers the field and demonstrates that there is nothing more to examine”: In the matter of Jewel of India Holdings Pty Ltd (2022) 160 ACSR 429; [2022] NSWSC 356 at [142], also see [122] (Williams J); Kirk at [46]. Furthermore, in relation to a mandatory summons, no particular reason needs to be established for seeking the summons, nor that the proposed examination would have practical utility, nor that the examination would or would likely produce any particular result, nor that the examination would be in any sense desirable or efficacious: Kimberley at [21]. This also includes that seeking such a summons cannot be confined by reference to the examination being of benefit to the corporation, its creditors or its contributories: Walton at [169]. A mandatory examination summons that is sought for a substantial purpose including the public purpose of the enforcement of the Act, is also permitted and within the bounds of s 596A of the Act: Walton at [175]. Further, the enforcement of the law can be a legitimate use of the power in s 596A, whether for all creditors or all contributories or only a small group: Walton at [190]. The wider purpose of s 596A is reinforced because applying for such a summons is only intended to be a “formality” if the statutory criteria are meet (Walton at [91] and [166]; Kimberley Diamonds at [22]). Finally, the Act does not require an affidavit in support of an application for a mandatory examination summons (although the FCR do require such an Affidavit).

224    On this basis and subject only to the doctrine of abuse of process, an application for a mandatory examination summons is a formal matter, where if the two (or five) statutory criteria are meet, it must issue. Whether the quantity of information that such an applicant had or had access to, of itself, must be disclosed, needs to be considered in the statutory context of this being a mandatory examination, which must issue if the statutory criteria are met. There is nothing in the statutory criteria which would require an eligible applicant under s 596A to disclose the quantity of material they had or had access to. The consideration of whether an eligible applicant complies with the duty of disclosure, with respect to the quantity of information available, under s 596A must be the same, irrespective of who is the eligible applicant. As the issuing of a mandatory summons is a “formal” matter, requiring no particular purpose or reason to be advanced, the quantity of the information that the eligible applicant had available to them could not be required to be disclosed. The mandatory examination process is essentially an information gathering process: Jewel of India at [122]; Kimberly Diamonds at [102]; Kirk at [44].

225    For these reasons, the disclosure or non-disclosure of the quantity of information that the Plaintiff had or had access to, would not amount to a material non-disclosure for the mandatory examination summons under s 596A of the Act. This non-disclosure could not affect the mandatory issue of those examination summons under s 596A. As such, in this sense there has not been any material non-disclosure.

226    There is a commonality between the two examination provisions being the Court’s capacity to prevent abuse of process: Walton at [92]. However, there are important differences between s 596A and s 596B: Kimberley Diamonds at [23]; Walton at [91] and [152]. Section 596B confers upon the Court a discretion. The Court retains a discretion and is not required to issue the summons, even if the statutory criteria under s 596B are satisfied.

227    Relevantly (it was not contended that s 596B(1)(b)(i) was objectively satisfied), s 596B(1)(b)(ii) requires the Court to be objectively satisfied of certain jurisdictional facts before the discretion arises.

228    In relation to s 596B(1)(b)(ii), the discretionary examination is permitted where the proposed examinee “may” be able to give information about the “examinable affairs” of the corporation. The use of the word “may” in this provision conveys that it is not necessary that the proposed examinee will or must be able to provide such information, simply that they “may” be able to provide such information. Therefore, the requirement of s 596B(1)(b)(ii) can be satisfied where it is likely that the examinee can provide information (Re Australian Liquid Storage Pty Ltd (in liq) (2017) 121 ACSR 119; [2017] FCA 559 at [27]-[29] (Derrington J); S & V Nominees Pty Ltd (in liq) v Rabobank Australia Ltd (formerly known as Primary Industry Bank of Australia Ltd) (2010) 78 ACSR 85; [2010] FCA 429 at [35] (Besanko J) about, the broad notion of the “examinable affairs” of the corporation: Walton at [167].

229    There is some debate as to whether s 596B(1)(b)(ii) is delimited by the “information” that the proposed examinee may be able to give, should be information not within the knowledge of the eligible applicant: Pitman at [38]. Basten JA in Meteyard at [39(c)] stated that the scope of power under s 596B(1)(b)(ii) was delimited in this way. Although Basten JA then observed at [139] that “There may be circumstances in which a receiver is entitled to find out whether the examinee has information which is already known to the receiver.” Santow JA in Meteyard at [11] observed that information that was already known may still be properly examinable in some circumstances. White J in Godfrey as liquidator of Pobjie Agencies Pty Ltd (in liq) (2007) 61 ACSR 54; [2007] NSWSC 138 at [68] also observed it would be difficult to know when the liquidator has “knowledge” but in any event, investigation regarding the information was permissible. Derrington J observed in Pitman at [38] that if the information thought to be reposed in the intended examinee was already known or substantially known to the liquidator, that would be relevant to the exercise of the Court’s discretion.

230    The provision is to facilitate investigations regarding the corporation, by allowing an eligible applicant to seek to examine a broader range of examinees, than those who would fall within the terms of s 596A of the Act. Although there must be a factual foundation for the Court to be satisfied that the application for a discretionary examination summons relates to the examinable affairs of the corporation, that would also include whether something does or does not form part of the examinable affairs: Jane v Secatore (Liquidator), in the matter of Last Lap Pty Ltd (in liq) [2021] FCAFC 108 at [14] (Davies, Charlesworth and Jackson JJ).

231    The examination summons sought under s 596B may be declined, as an exercise of discretion, if it is not sufficiently justified or have practical utility (Kimberley Diamonds at [24]).

232    The statutory purpose of s 596B also does not confine it to the interests of the corporation, its creditors or its contributories: Walton at [188]. An examination under s 596B would also include enforcement of the law concerning the corporation in its public dealings: Walton at [189]. Edelman and Stewart JJ described it as follows, in relation to s 596B of the Act (Walton at [189]):

189    The creditor’s purpose was consistent with “the evident intention of the legislature … that directors and those engaged in the management of companies should be accountable” (288). The examination would have “[been] of matters of concern to others” (289). The examination would have concerned a period of trading that would have affected other creditors, and the ASC, “in its role as regulator”, could have chosen to participate (290). The record of the examination would have been open to any such creditor and to the ASC (291). Finally, Hayne J observed (292):

“If any question arose of the examination being conducted in a particular way that amounted to an abuse or was vexatious, then application might be made to stop that abuse.”

233    The discretionary examination summons must be supported by a confidential affidavit: s 596C of the Act. It is this Affidavit which will provide the factual basis for meeting the jurisdictional facts in s 596B(1)(b)(ii) of the Act and address the discretionary considerations.

234    The duty of disclosure under each of s 596A and s 596B is different. The disclosure or non-disclosure of the quantity of information or knowledge that the Plaintiff had or had access to, would not amount to a non-disclosure for the mandatory examination summons under s 596A of the Act. However, whether it is applying the approach of Basten JA in Meteyard or the alternative approach, the quantity of information and knowledge by the Plaintiff will be relevant, at least as to the exercise of the discretion (as observed by Derrington J in Pitamn). On Basten JA’s approach, it would be relevant because the scope of power is delimited by whether the “information” sought to be obtained was already within the knowledge of the eligible applicant. Further, and applying the alternative approach, in order to satisfy the Court objectively that the proposed examinee was able to provide such information it would be relevant for the eligible applicant to disclose to the Court, what information or knowledge they had available to them.

235    This failure, in relation to the quantity of information and knowledge that the Plaintiff had available in relation to each of Moreton Resources or MRV, is a material non-disclosure. This is relevant to the exercise of the discretion, as observed by Derrington J in Pitman. Being relevant, the Registrar would have taken this into account and as such the Registrar’s decision could have been different.

Conclusion – the HWLE Parties’ non-disclosures were material

236    For the above reasons, there were material non-disclosures by the Plaintiff on the ex parte application as follows:

(a)    in relation to the s 596B discretionary examination summons:

(i)    for failing to disclose the (2022) DOCA;

(ii)    the correct and explained position as to the Plaintiff’s shareholding in Morton Resources and MRV; and

(iii)    the quantity of information and knowledge that the Plaintiff had and had access to.

237    None of the matters raised by the HWLE Parties would, of itself have amounted to a material non-disclosure for the examination summons issued under s 596A. All of the HWLE Parties were summoned pursuant to s 596B of the Act.

238    It is then to consider the CBP Parties’ contentions as to non-disclosures.

CBP Parties’ Categories of Non-Disclosure

239    The CBP Parties advance six categories of non-disclosure. However, some of these categories are advanced on separate multiple bases. Apart from the submissions regarding the “suitability matters” each of JWS Parties and the HWLE Parties adopted and relied on the CBP Parties’ categories and submission regarding these non-disclosures.

(1)    Hearing 15 October 2024 and first and second confidential affidavit

240    Relevantly, the matters advanced by the CBP Parties as being material non-disclosure are based on the following:

(a)    2020 Proceedings and the Costs Judgment;

(b)    2023 Proceedings and the 2023 Costs Judgment;

(c)    Mine Sale Agreement;

(d)    The Plaintiff did not inform the Court that whether the directors of Moreton Resources had power to requests its files from CBP was controversial.

(e)    The Plaintiff did not inform the Court about complaints made against some of the proposed examinees;

(f)    Plaintiff’s October Submissions, in particular respects;

(g)    Plaintiff’s oral submissions and non-disclosure regarding Mr Elks;

(h)    Affidavit of Mr Elks and his “suitability issues”; and

(i)    Hearings on 26 November 2024 and 9 January 2025.

241    Although each of these documents was dealt with separately, it is also appropriate to consider the cumulative effect of these matters.

(a)    2020 Proceedings and the 2020 Costs Judgment

242    The Examinees are critical of the Plaintiff in only expressly bringing to the court’s attention, in this context, the 2020 Costs Judgment. It was this decision which was relied on by the Plaintiff in seeking the s 596B summons against, relevantly, Mr Williams, Mr van Staden and Ms Bullen. The Examinees submit that the Plaintiff was required to also bring to the Court’s attention the 2020 Judgment, which was delivered on 13 November 2020. There was, so it is submitted, material non-disclosure by not doing so.

243    The Plaintiff submits that the disclosure of the existence of the 2020 Judgment was in evidence, by the internal reference to it, in the 2020 Costs Judgment (at fn 3, fn 7 and fn 12). However, the Plaintiff primarily relies on a submission that disclosure was not necessary as the purpose for relying on the 2020 Costs Judgment was to demonstrate that CBP were representatives of parties involved in the affairs of the Companies. The Plaintiff also relies on the fact that she was not a party to those proceedings and as such, it is appropriate to investigate the examinable affairs of the Companies, in this way.

244    The transcript before the Registrar reveals that the primary matter relied on by the Plaintiff in relation to the 2020 Costs Judgment is the representation and that CBP were the solicitors for the second, third and fifth respondents being, Mr Feitelson, A & J and Mr Kirk and Mr Joiner as Receiver of MRV, respectively. Further, from the representation recorded in the 2020 Costs Judgment is that Moreton Resources and MRV were the first and second applicants respectively, and the third applicant was Mr Orr and Mr Sparks as liquidators of Moreton Resources and MRV. These matters, as to representation, were the same in the 2020 Costs Judgment and the 2020 Judgment.

245    The Plaintiff’s oral submission that CBP was involved in these proceedings for Moreton Resources was not correct. CBP represented parties on the other side of the proceedings, being the respondents.

246    The 2020 Judgment commences by outlining the position of MRV in terms of the “Granite Belt Project” (at [2]-[3]). Listed are the exploration permits, mining lease and the relevant freehold properties. Those matters of the freehold property are listed in Item 1 of Schedule 1 to the Mine Sale Agreement and the exploration permits and mining lease are listed as Item 2 of Schedule 1 to the Mine Sale Agreement.

247    Flanagan J in the 2020 Judgment (at [10]-[16]) set out the relevant background to appointment of Mr Orr and Mr Sparks firstly as Administrators on 10 June 2020 and then as liquidators on 15 July 2020. During these appointments a sale campaign was conducted of the assets of Moreton Resources and its subsidiaries. On 27 July 2020 the liquidators received an offer to purchase the MRV assets from Jadar Resources Limited, which was reduced to a terms sheet. Subsequently Mr Feitelson and A & J caused caveats to be lodged over the exploration permits and mining lease. On 14 September 2020, the liquidators executed the Jadar Sale Agreement (as defined in the 2020 Judgment at [13]). The Jadar Sale Agreement was subject to certain conditions precedent. On 25 September 2020, a Deed of Appointment of Receivers was entered between Mr Feitelson and A & J on behalf of First Samuel (as appointer) and Messrs Joiner and Kirk as receiver (who were the fifth respondents).

248    Flanagan J recorded the primary relief sought as follows (at [17]):

17    The primary relief sought by the applicants in the amended originating application is for a direction pursuant to s 99(2) of the Property Law Act 1974 (Qld) (PLA) that the Sale Interests (as defined in the Jadar Sale Agreement) be sold pursuant to that agreement. The applicants also seek a declaration pursuant to s 418A of the Corporations Act 2001 (Cth) that the appointment of the fifth respondents as receivers of the property of MRV Metals is invalid.

(emphasis added)

249    Relevantly, one of the primary issues to be determined (at [20]) was stated by Flanagan J as being “were the fifth respondents validly appointed as receivers of MRV Metals?”. In the 2020 Judgment, Flanagan J considered this issue (at [78]-[107]) and held that the declaratory relief should be refused.

250    The 2020 Judgment provides considerable relevant background, commencing with the entry into the Secured Debenture Deed on 24 May 2017. Observing that Mr Elks was a debenture holder for an amount of $794,715.14 (at [5(c)] and [56]) and then construing the relevant Secured Debenture Deed and Security Trust Deed.

251    As the 2020 Judgment was not in evidence before the Court, the Court was not informed of the substantive decision or that the Receiver appointment was not declared invalid.

252    In the Fourth Plaintiff Affidavit, filed and provided to resist the Examinees applications to discharge or set aside the examination summons, she provides that one of the purposes of the examination summons is to investigate the Mine Sale Agreement. Investigations regarding the Mine Sale Agreement would fall within the broad definition of examinable affairs.

253    The 2020 Judgment, rather than only the 2020 Cost Judgment should have been in evidence before the Court, on the applications for examination summons. The 2020 Judgment was relevant in relation to the decision to summon a person under s 596B of the Act, being an exercise of discretion. It was relevant because the Supreme of Queensland had undertaken the relevant construction exercise of the Secured Debenture Deed and Security Trust Deed and determined the Receivers appointment was valid. Furthermore, that in the circumstances, the Court considered whether to exercise its discretion to direct a sale in terms of the Jadar Sale Agreement. Those circumstances relevantly included where there was enforcement of the Debenture Security and where the Court held that the appointment of the Receivers was valid. Therefore, the Court did not exercise its discretion under s 99(2) of the Property Law Act. The effect of the 2020 Judgment was that the Mine Sale Agreement and not the Jadar Sale Agreement was completed.

254    It was this substantive judgment of the Supreme Court of Queensland regarding an application for a declaration that the appointment of the Receivers of the property of MRV was invalid, which was relevant. The Court should have been informed of that contest and the outcome, being the 2020 Judgment. That the 2020 Judgment was referenced, in footnotes in the 2020 Costs Judgment, which was in the evidence before the Court, was insufficient: Walter Rau at [38]. Although the 2020 Judgment was publicly available and was also able to be obtained by the Registrar, that also does not remedy the Plaintiff’s failure. The obligation on the Plaintiff on this ex parte application was a duty of frankness and candour, to make full and frank disclosure of all matters which could impact upon the decision to summon a person for examination about a corporations examinable affairs. It is not for the Registrar to conduct his own inquiries.

255    The 2020 Judgment was not only relevant in relation to which party CBP represented. The brief summary of the substantive issues in the 2020 Judgment manifests its relevance.

256    The matter will be materially relevant, such that it will meet the standard of material non-disclosure if it could in the sense it was a realistic possibility not one which is fanciful or improbable. As explained the 2020 Judgment could have affected the Registrar’s discretionary decision because of the substantive issues which were decided by Flanagan J. It is not necessary that it would have made a difference. There was material non-disclosure by the Plaintiff in relation to the 2020 Judgment, on the ex parte applications for examination summons under s 596B of the Act.

(b)    2023 Proceedings and the 2023 Costs Judgment

257    The Examinees submit that there has been material non-disclosure by the Plaintiff in not bringing to the Court’s attention the 2023 Judgment and only annexing the 2023 Costs Judgment. The Plaintiff submits that the purpose of 2023 Costs Judgment, was to demonstrate that CBP were representative for the Companies. The Plaintiff also submits that she was not a party to these proceedings and the 2023 Judgement was referenced in 2023 Costs Judgment. The front of the judgment in 2023 Costs Judgment records CBP acting for the respondents, which comprised of Melgear Pty Ltd (first respondent), Mr Kirk and Mr Joiner as Receivers of MRV (second respondent) and Mr Feitelson (third respondent).

258    The Plaintiff’s submission that CBP was the representative of the Companies cannot be correct as Moreton Resources was not a party to the BS12986/21 proceedings. The Plaintiff submitted that CBP were “representatives of parties involved in the affairs of the Companies.” The Plaintiff did not specifically address how CBP were “involved in the affairs of the Companies”. There is little mention of Moreton Resources in 2023 Costs Judgment. It is also not correct that CBP acted for MRV, they acted for the Receivers of MRV in the proceedings (together with the other respondents).

259    The 2023 Costs Judgment was after delivery of the substantive judgment (being the 2023 Judgment) and was considering the form of directions to be given to the Receivers, to give effect of the 2023 Judgment. To properly understand the decision of Cooper J in 2023 Costs Judgment it would be necessary to have regard to the 2023 Judgment.

260    The opening paragraph of the 2023 Judgment states:

1    The proceeding concerns secured debts owed by Moreton Resources Ltd, a mining company formerly listed on the ASX, and its subsidiary MRV Metals Pty Ltd.

261    Cooper J sets out the relevant background (at [2]-[6]) with reference to the terms governing the security being the Secured Debenture Deed and Security Trust Deed both dated 24 May 2017, the liquidators appointment on 15 July 2020 and the appointment of the Receivers on 25 September 2020. Cooper J observes that the Receiver’s sold MRV Metal’s interest in the silver mine and the proceeds of that sale remained with the Receivers. In this context, Mr Elks sought declaratory and other relief concerning (at [7]):

(a)    the distribution of the monies held by the Receivers following the mine sale; and

(b)    the position of Melgear as security trustee.

262    Cooper J records the following in the 2023 Judgment at [8]:

8    Central to Mr Elks’ claim for relief is his contention that he took an assignment of secured debts owed to First Samuel by Moreton Resources and guaranteed by MRV. That assignment occurred in two stages. In the first stage, First Samuel assigned specified debts to MRL Moreton Resources Pty Ltd (MRL Moreton), a company controlled by Mr Elks, by loan assignment deed dated 5 July 2021. In the second stage, MRL Moreton assigned those debts to Mr Elks by loan assignment deed dated 10 July 2021. The respondents dispute Mr Elks’ contention on the basis that debentures held by First Samuel under the Secured Debenture Deed were paid out with the proceeds raised by Moreton Resources through the issue of unsecured notes, such that the debts assigned by First Samuel were not secured debts.

263    Mr Elks also contended that an agreement dated 27 February 2020 granted him priority over and above other debenture holders (February 2020 Agreement). That was contested, including so that it did not include the proceeds of sale of the silver mine. Finally, Mr Elks also challenged the validity of the appointment of Melgear as security trustee. Cooper J distilled the five issues (at [11]) which arose in the proceedings. In a comprehensive decision, each of those issues was identified and answered as follows:

(a)    the secured debentures held by First Samuel were paid out and replaced by unsecured debts, which were not covered by the Security Debenture Deed (at [12]-[84], see also the conclusion at [84]);

(b)    the February 2020 Agreement did not alter the priority of creditors of Moreton Resources and MRV, for two reasons because advances made under the 2019 Unsecured Note Deed were not covered by the Secured Debenture Deed and on the proper construction of the 2020 February Agreement it did not entitle Mr Elks to payment of all debts owed to him by Moreton Resources, in priority to payment of the full debenture debt owed to Mr Feitelson, Mr Elks was only granted priority for the debts which had been the subject of the statutory demand issued by to Moreton Resources ([108]-[112], see also the conclusion at [118]);

(c)    whether the assignment of the debt owed to First Samuel in July 2021, was effective to assign the indebtedness of MRV and the benefit of the security provided under the Secured Debenture Deed to Mr Elks, did not arise as the first issue was decided against Mr Elks (at [119]);

(d)    whether Melgear was validly appointed as security trustee under the Security Trust Deed, also did not arise for determination, when the first issue was decided against Mr Elks (at [123]-[124]);

(e)    there was no other basis as an exercise of discretion under s 80(1) and s 82(2)(a) of the Trusts Act 1973 (Qld) upon which Melgear should be removed as security trustee and replaced (at [125]-[160]).

264    In conclusion, while the originating application of Mr Elks was dismissed, Cooper J observed at [159] that it was the Receivers that held the security trust assets being the proceeds of the mine sale agreement and directions should be made for the Receivers to calculate the entitlement of creditors of MRV and pay funds to those creditors in accordance with their entitlements. It was these directions (together with costs) which were then the subject of 2023 Costs Judgment.

265    As this summary of the 2023 Judgment demonstrates the substantive issues in dispute and resolved in these proceedings were comprehensively dealt with in the context of the historical matters of Moreton Resources and MRV. Further, Cooper J records (at [132] of the 2023 Judgment) that Mr Elks was aware of the earlier 2020 Proceedings before Flanagan J but chose not to seek to be joined as a respondent.

266    For the above reasons, the 2023 Judgment could have affected the Registrar’s discretionary decision under s 596B because of the substantive issues which were decided by Cooper J. It is not necessary that it would have made a difference. There was material non-disclosure by the Plaintiff in relation to the 2023 Judgment, on the ex parte applications for examination summons under s 596B of the Act.

(c)    Mine Sale Agreement

267    The Examinees contend that the Plaintiff’s disclosure regarding the Mine Sales Agreement was inadequate in that important features of the Mine Sale Agreement were not brought to the Court’s attention. The Plaintiff disagrees submitting that her Affidavit expressly referred to the document that was annexed being an “abridged” copy. Further the Plaintiff submits that the evidentiary purpose of the Mine Sales Agreement was to demonstrate that CBP were representatives of parties involved in the affairs of the Companies (being Moreton Resources and MRV). Finally, the Plaintiff submits that this is not a matter could have affected the Registrar’s decision to issue the summonses.

268    The four pages of the Mine Sale Agreement which were annexed, comprised of the front cover page, which recorded it was a “Mine Sale Agreement” for the “Granite Belt Silver Project” and was in relation to the MRV. This cover page does have the details of CBP on it which indicates that it was CBP which drafted the document. The next two pages of the documents are the contents pages of clauses 1 to 16 and Schedules 1-5. The fourth page describes the parties, being the seller as MRV, together with the Receivers (Mr Kirk and Mr Joiner) and the buyer being Thomson Resources Ltd. The guarantor is left blank on this page. The document is dated 3 March 2021.

269    The relevant submissions to the Registrar commence with “matters pertaining to 596B…” from the Second Plaintiff Affidavit and express reference by the Plaintiff seeking to make “inquiries with the advisors, with the receivers, the security trustee being Colin Biggers & Paisely, Mr Glen Williams, Brent Van Staden, Lois Bullen, who have obviously all spent considerable time dealing with matters of the company.” The Plaintiff then refers to “those parties”, which in context are Mr Williams, Mr van Staden and Ms Bullen, who “are likely to be able to provide information to the company’s affairs, given their lengthy dealings with the company, and --- ”. It is in this context that the Plaintiff takes the Registrar to the Mine Sale Agreement. It is described by the Plaintiff as “one of the significant events that Colin Biggers & Paisley had to do with MRV.” The Registrar observes that the Mine Sale Agreement bears the “mark” of CBP, so that it was clear that they had some involvement, however, it was not clear who they acted for at the time.

270    On a review of the full version of the Mine Sale Agreement, clause 6.1 stated that completion was to take place at the offices of the Seller’s solicitors at Level 35, 1 Eagle Street, Brisbane. That address, as stated on the front cover of the Mine Sale Agreement, is that of CBP.

271    Usually, when documents are to be used in evidence in the Court, the whole document should be provided. Taking a portion of a document said to be relevant will usually not be the appropriate approach. However, it is also not appropriate to inundate the Court with voluminous material, if such material is not relevant. The Plaintiff relied on the Mine Sale Agreement, as being relevant document to support the issue of a discretionary summons under s 596B of the Act. It is unclear, in those circumstances, why the Plaintiff did not provide a complete copy of that document. By providing an incomplete copy of the Mine Sale Agreement the Court was uninformed about certain details regarding that transaction, which it would have known, had a complete copy been provided. Without being exhaustive, those matters would have included the consideration of $6.5 million, the nature of the assets being sold, conditions precedent and when the agreement was due to be completed.

272    The Plaintiff has not sought to explain why the incomplete version of the Mine Sale Agreement was put into evidence before the Court. However, the Plaintiff maintains the submission that the abridged version of the document was sufficient and that it could not have affected the decision of the Registrar.

273    The purpose that the Plaintiff sought to rely on the Mine Sale Agreement was to demonstrate that CBP represented MRV and/or the Receivers. Although as the whole document was not before the Court the express part of the document which would have supported such a submission was not available it is apparent that the Registrar drew that inference. Of itself provision of the complete copy of the Mine Sale Agreement, objectively, could not have affected the decision of the Registrar. This is because of itself it would have actually supported the submission made by the Plaintiff regarding the representation by CBP of MRV and the Receivers. Furthermore, on its face, the Mine Sale Agreement was a transactional document by which the Receivers were selling assets of MRV. That the Plaintiff then sought to make inquiries of the solicitors involved with the drafting of that document, and in relation to the transaction would have been within the terms of s 596B(1)(b)(ii) of the Act. Such a transaction would have been within the business affairs of MRV and Moreton Resources, as a related corporation. This finding, in relation to this particular document in the circumstances of this case, should not be taken as an endorsement of parties to provide a portion or part of documents, when seeking to rely on such documents before the court. It is not.

274    The entire Mine Sale Agreement should have been put before the Court. Of itself it would be relevant and could affect the decision of the Registrar, in exercising the discretion under s 596B of the Act.

(d)    The Plaintiff did not inform the Court whether the directors of Moreton Resources had power to requests its files from CBP was controversial

275    The Examinees submit that the Plaintiff should have brought to the Court’s attention that whether Moreton Resources directors had power to request its client files, was controversial. This was with reference to a letter signed by the Plaintiff, as director of Moreton Resources, dated 14 June 2022 (14 June Letter), that the Plaintiff relied on as a request by Moreton Resources directors seeking copies of the Company’s records from CBP. The Examinees submit that it is implicit by the Plaintiff’s reliance on this letter and the submissions advanced to the Registrar that the directors had power to make the request for the records. However, whether the directors had power to make such a request was, the Examinees submit, controversial and such controversy should have been bought to the Court’s attention. The Plaintiff disagrees, submitting that the letter was simply relied on to demonstrate that CBP were representatives of parties involved in the affairs of the Companies. The Plaintiff also submits that there was no implicit suggestion that Moreton Resources directors had the power to make the request for the client files, by referring the Court to this 14 June Letter.

276    The 14 June Letter is annexed to the second Plaintiff Affidavit and described in the annexure contents as “being a copy of a request by Moreton Resources Limited Directors seeking copies of Company records from Colin Biggers & Paisley Solicitors [sic]”. It was similarly described in the substantive part of the Second Plaintiff Affidavit. The 14 June Letter is signed by the Plaintiff as “Director - Moreton Resources Limited”, is on Moreton Resources letterhead and addressed to Mr van Staden of CBP. There is no mention on the face of that letter that as at 14 June 2022, Moreton Resources was in liquidation. Relevantly, the 14 June Letter states:

Dear Mr Van Staden,

Re:    Release of Client File – Moreton Resources Limited

Preliminary

1.    As you are aware Moreton Resources Limited is subject to a Deed of Company Arrangement which was voted upon on 7 June 2022.

2.    Upon that day a new board was appointed and since that time we have been undertaking a review of the Company records including emails and documents.

3.    As you are also aware, you Mr Brent Van Staden in conjunction with Mr Glen Williamson particularly from the date of January 2020 through to June 2020 undertook considerable work on behalf of Moreton Resources Limited..

Request;

4.    Moreton Resources Limited hereby request the total Client file for Moreton Resources Limited, including all correspondences, emails, notes, records and any other documents in existence that pertain to the matters of Moreton Resources Limited, to which you were engaged upon and dealt with in any capacity on behalf of CBP Lawyers.

5.    I will arrange to pickup the relevant multiple client files that pertain to Moreton Resources Limited, MRV Metals Pty Ltd, Bowen Basin Coal Pty Ltd and Tarong Basin Boal Pty Ltd.

6.    If you can please advise when this maybe undertaken however our preference is to collect the items which you understand are legally obliged to be handed over, preferable by no later that 5.00pm Friday 17 June 2022.

277    At the hearing on 15 October 2024, in response to the Registrar’s query flowing from the representation on the decision page of the 2020 Costs Judgment regarding the particular involvement of Mr Williams, Mr van Staden and Ms Bullen was the 14 June Letter. The Plaintiff submitted that “it’s a letter directly to Brent Van Staden [sic] requesting release of client files, and that’s relating to Moreton Resources.”

278    The 14 June Letter advanced at least two propositions on the Plaintiff’s ex parte application. First, it was relevant as being a specific assertion by a director of Moreton Resources that work had been undertaken by CBP between January 2020 and June 2020 for or in relation to Moreton Resources. This was said to be relevant by the Plaintiff as then the relevant personnel identified from CBP, may be able to give information about examinable affairs of Moreton Resources and its subsidiary, MRV: s 596B(1)(b)(ii) of the Act. Secondly, it gave the impression that the Plaintiff as director of Moreton Resources, had attempted to obtain information, by way of the company’s client files from its previous solicitor, but that was not provided. This was in the context, that the Plaintiff in the OA had expressly stated and relied on:

On the facts stated in the supporting affidavit(s), the plaintiff claims:

…

3.    That since on taking the Voluntary Administration, Liquidation and/or Receivership, multiple requests for information and details, which are the right of the requesting parties have been unanswered by those administering the voluntary Administration, Liquidation or Receivership, such as but not limited to:

a.    Company Records requests

b.    Requests for documents and amounts spend upon the administration

c.    Information pertaining to the claims upon the Company funds

279    Reliance on the 14 June Letter together with this part of the OA carried with it a submission by the Plaintiff that certain requests for documents and records of the Company had been properly made and unanswered. By the Plaintiff contending that such requests were unanswered that would include either that no substantive response was received or that there had been no provision of the documents requested. The OA expressly refers to and relies on there being a “right of the requesting parties”. Taking this material of the Plaintiff together, there is an implicit submission that the request for the records and documents, by way of the Company files carried with it a submission that the director who made this request had the power to do so. The Plaintiff’s contention that such a request was unanswered, carries less relevance if there was no power to make the request, because the obvious explanation for the lack of a response is that as there was no power to make the request, there was no requirement to answer it.

280    In cross-examination about the 14 June Letter, the Plaintiff stated that the intent behind the letter was to get the Company records. The 14 June Letter was attached to a covering email. That covering email was substantive, and not merely a formal covering email, however it was not placed before the Court, only the 14 June Letter itself was in evidence before the Registrar. As such, the Plaintiff effectively only placed a portion of this correspondence before the Court. A complete copy would have comprised the covering email and the attached pdf letter.

281    The Plaintiff gave evidence that she did not regard the covering email as relevant, as the purpose of the attached letter was to obtain the records of Moreton Resources. The Plaintiff’s further answer that:

…the intent was to highlight that I have made efforts to obtain the files of Moreton Resources and I have been unable to do it. Hence, part of the reason for the public examination, to obtain records, dealings, transactions of Moreton Resources.

282    This purpose of the 14 June Letter, further reinforces the implicit submission before the Registrar that there must have been power to make such a request and that efforts had been made to obtain such records. The Plaintiff gave evidence that she believed, as at 14 June 2022, as a director, she was entitled to the records of Moreton Resources. This was at a time that Moreton Resources was in liquidation.

283    The Plaintiff also did not place before the Court, the response to the 14 June Letter, by CBP. The response by CBP was dated 17 June 2022 (17 June Letter) and amongst other matters, stated that the Plaintiff’s ability to act with the power of a director of Moreton Resources was suspended as a matter of law. The basis for that position was provided by CBP, relying on the terms of the DOCA and that Moreton Resources was still in liquidation and receivership. The DOCA was signed by the Plaintiff on 7 June 2022 and it was accepted that she was familiar with its terms when the 14 June Letter was sent.

284    The Plaintiff, as director of Moreton Resources also wrote to the Receiver, Mr Kirk on 13 June 2022, in certain terms. It is unnecessary to traverse that letter in detail. Mr Kirk responded to the Plaintiff on 17 June 2022, relevantly stating that the directors of Moreton Resources had no power to act and no authority to issue correspondence on behalf of Moreton Resources. This was on the bases that Moreton Resources was in liquidation, receivers were also appointed and because of the non-completion of certain terms of the DOCA. The Plaintiff did not annex this letter to any affidavit that was relied on before the Registrar, when seeking the examination summons. The Plaintiff gave evidence that she did not think it was relevant to the fact that the particular person had information about the examinable affairs of Moreton Resources.

285    There was also a letter from CBP dated 17 June 2022 which, amongst other matters gave their view that the Plaintiff did not currently hold the powers of director of Moreton Resources. This was also not before the Registrar.

286    The Plaintiff maintained her position that as a director of Moreton Resources, she was entitled in June of 2022, to act as director and demand the records of that company. However, ultimately the Plaintiff did accept that there were differing views or differing opinions about whether the directors of Moreton Resources had or lacked power. The Plaintiff also accepted that this difference of opinion regarding whether the director had the power to make the request for the client files, was not brought to the Registrar’s attention on the ex parte application for the examination summons.

287    The Plaintiff then sought to rely on an email from Mr Hambleton, the Deed Administrator at that point in time (Exhibit 12), dated 18 June 2022 to support her position, that the directors did have the necessary power to act as directors.

288    During cross-examination the Plaintiff was taken to additional letters written by and received by the Plaintiff on the basis of being a director of Moreton Resources. These additional letters traversed the controversary regarding the directors power to act (or suspension), the demand for the release of the client files and other matters regarding alleged conflicts and other controversies, including matters concerning the DOCA. These additional letters were not put in evidence by the Plaintiff, in the material before the Registrar. The Plaintiff was of the view that all she had to do was seek to satisfy the requirements of s 596A or s 596B, beyond that such material was not necessary.

289    It is not necessary for the purposes of this application to resolve whether the Plaintiff’s position is correct or not. What is necessary is to consider whether there has been a material non-disclosure by failing to bring these documents to the Court’s attention. Furthermore, as framed, the Examinees submit that it was the controversary as to the Plaintiff’s ability to exercise the power of director of Moreton Resources which should have been disclosed to the Court. This was particularly in circumstances of the implicit submission that the Plaintiff had requested the client files which had not been provided.

290    I accept the Examinees’ submission. The Plaintiff was selective as to the material she put before the Registrar. Furthermore, the Plaintiff did not inform the Registrar that there was a controversary as to whether she could exercise the power of the being a director, at the time when she was purporting to exercise such power. This was a material non-disclosure by the Plaintiff, on the application for examination summons under s 596B of the Act.

(e)    The Plaintiff did not inform the Court about complaints made against some of the proposed examinees;

291    The Plaintiff annexed to the Second Plaintiff Affidavit a copy of a decision of the Takeovers Panel, regarding Moreton Resources Limited (in Liquidation) Receivers Appointed) (Subject to Deed of Company Arrangement) 03 [2022] ATP 19 (TP Decision). It was described by the Plaintiff in her affidavit as highlighting CBP as a named party involved. This was said to indicate the ability of CBP to assist and that they may have knowledge that will assist in the public examination enquiries.

292    At the hearing on 15 October 2024, the Plaintiff took the Registrar to the TP Decision at [12] to support her contention of the involvement of CBP. The only part of the TP Decision which the Plaintiff took the Registrar was that part which was directly quoted from the Plaintiff’s application to the Takeovers Panel seeking a declaration pursuant to s 657C(2) of the Corporations Act of unacceptable circumstances. The TP Decision was dated 12 July 2022 (published 13 July 2022) from the Plaintiff’s application dated 4 July 2022. The application was lengthy. Despite its length, the TP Decision was given just over a week later. In the result the TP Decision stated that it was not apparent that they have jurisdiction or that any of the circumstances are unacceptable. The matter was described as not having “any reasonable prospect” that a declaration of unacceptable circumstances would be made.

293    The application to the takeovers Panel was a document that the Plaintiff had drafted and was not included in the material before the Registrar. It included many direct references to the individuals against whom examination summons were sought. This was a matter which the Registrar raised with the Plaintiff, regarding the TP Decision, that there was no specific reference to any of the individuals of CBP. In those circumstances, it is difficult to understand why the Plaintiff did not also include the application to the Takeovers Panel or include it in the third Plaintiff Affidavit. The Plaintiff in her evidence in cross-examination stated that had the application been included it would have given more weight to the serious concerns about the examinable affairs of Moreton Resources. Implicit in this recognition by the Plaintiff, is that the material was relevant. Further, to properly understand the TP Decision, the Registrar would have been assisted by also having the application document. The CBP Parties allege that the Plaintiff did not include the application to the Takeovers Panel because it made and contained references to other complaints made by the Plaintiff against some of the individual proposed examinees. This, so it is submitted, was a matter that the Plaintiff did not want to bring to the Registrar’s attention because to do so would have also alerted the Registrar to the complaints the Plaintiff has already made. The Plaintiff denied that the application was not included for that reason.

294    It is not necessary for the purpose of determining whether there has been a material non-disclosure to decide the basis for why a document was not provided. It was accepted by the Plaintiff that the application to the Takeovers Panel was not provided to the Court. The Plaintiff’s evidence that it would have given more weight to her position, is an acceptance that the application itself was relevant. Being relevant it is a matter which could have affected the decision and as such the non-disclosure of it is a material non-disclosure on the ex parte application.

(2)    Plaintiff’s October Submissions

295    The Examinees point to particular aspects of the Plaintiff’s October Submissions and submit that the submission were inherently based on certain non-disclosures to the Court and were misleading. It is necessary to deal with each in turn.

1.    October Submissions at [2]

296    The Examinees are critical of the word “purport” in [2] of the October Submissions. That paragraph states:

2.    That same DOCA purports to preserve the rights of the “Receivers” whom existed at the time being Cor Cordis Pty Ltd, who purport to control the Assets of [Moreton Resources] and [MRV Metals] (Receiver Appointed to assets pre 3 May 2022 (MRV) up to the relevant dated, being 3 May 20022.

(emphasis added)

297    The Examinees submit that the use of the “purport” was designed to cast doubt on the position of the Receivers as to their control of the assets of Moreton Resources. This, the Examinees submit, should have been explained together with facts which contradicted that submission. Those facts were said to be that the appointment of the Receivers to Moreton Resources was found to be valid by Flanagan J in the 2020 Judgment. Cooper J in the 2023 Judgment did not accept any of Mr Elks’ arguments, including those in relation to the appointment of the Receivers to MRV (or to exercise his discretion to remove and replace Melgear as security trustee).

298    The Plaintiff submits that the focus on the single word “purport” is misplaced. At no time, did the Plaintiff submit to the Registrar that the appointment of the Receivers was invalid. Furthermore, the Plaintiff submits that it is not explained how the word “purport” could have effected the decision making of the Registrar.

299    The ordinary meaning of the word “purport” is to profess or claim. Using the word “purport” in the way it was in the Plaintiff’s October Submissions, was to create, at least some sort of doubt as to the position of the Receivers. It would have been open to the Plaintiff to simply submit “… at the time being Cor Cordis Pty Ltd, who control the Assets of” Moreton Resources. Unless some sort of doubt was meant to be conveyed, there was no need for the word “purport” to be used in that context. Moreover, this is in a context where the Plaintiff was seeking to create an impression that there were many issues and outstanding queries, in relation to the examinable affairs of Moreton Resources and MRV, that were necessary to explore, and hence why the examination summonses were appropriate. Moreton Resources and MRV were parties to the proceedings before Flanagan J and hence are bound by that judgment.

300    The Plaintiff’s October Submissions should not have described the position of the Receivers as being that they “purport” to control the assets of Moreton Resources and MRV. The validity of the appointment of the Receivers to MRV had been the subject of an unsuccessful challenge in the 2020 Judgment. As already observed that 2020 Judgment was not before the Court.

301    However, although the Plaintiff should not have described or advanced her October Submissions in this way, of itself, it would not be sufficient to support a finding of material non-disclosure or that the submissions was misleading. This is because in the October Submissions the Plaintiff repeatedly uses the word “purport” to describe matters. In that paragraph at [2], it is used twice. First that “that same DOCA purports to preserve the rights”, and then again, in relation to the Receivers “purporting” to control the assets. That is, it appeared to be more a matter of style, than of substance.

2.    October Submissions at [5] and [37] to [44]

302    In addition to the above paragraphs from the October Submissions, the Examinees also point to Annexures “LE3-012” and “LE3-013”. On the basis of the litigation which had already taken place, the Examinees submit that the Plaintiff already had possession of or ready access to a vast amount of material about the examinable affairs of each of Moreton Resources and MRV. In these circumstances, much of the matters that were sought to be investigated, had already been traversed in litigation. The Registrar should have been informed of this position, the Examinees submit. The Examinees also seek to rely on a passage of submissions made by Mr Elks about the position of Ms Bullen on 6 November 2024. The effect of those submissions being that Mr Elks should have informed the Registrar of the information already available. On this basis it is convenient to deal with this submission here.

303    The Plaintiff submits that whether she had access to a “plethora” of information is not a basis for refusing to issue the summonses: Kirk at [46]. The Plaintiff observes that there was previous litigation was evident from “LE3-012”, “LE3-013”, the 2020 Costs Judgment, 2023 Costs Judgment, “LE3-016” and the TP Decision. The Examinees submit that any implicit assumption of the amount of material available was insufficient to comply with the Plaintiff’s obligation of disclosure on the ex parte hearing.

304    The Plaintiff by paragraph [5] of the October Submissions was seeking to advance investigations into the affairs of Moreton Resources and MRV. The October Submissions at [37]-[44] were part of the submissions addressing the issue of summonses to, relevantly Mr Williams and Ms Bullen pursuant to s 596B of the Act. The Plaintiff submitted that each of Mr Williams and Ms Bullen are person who may be able to give information concerning the examinable affairs of Moreton Resources and MRV. Reliance was placed on “LE3-013” which was an Affidavit of Mr Williams dated 19 April 2024 in the proceedings before Cooper J, in relation to a further extension of time for the Receivers to make determinations as to the entitlements of the fund (which was a possibility foreshadowed by Cooper J in 2023 Costs Judgment at [13]). As Mr Williams in that Affidavit deposes to being the solicitor on the record for the respondents (being Melgear Pty Ltd), Mr Kirk and Mr Joiner as Receivers of MRV and Mr Feitelson) it was submitted that he would have information relevant to the examinable affairs of both Companies. It was contended by the Plaintiff that this affidavit of Mr Williams effectively “goes to the heart” of the enquiries and investigations sought to be undertaken by way of the examination summons. The affidavit was procedural and provided an explanation for why the Receivers required a further extension of time to comply with the Orders made by Cooper J and make the necessary determinations. I do not accept that this Affidavit supports the submission that it goes to the “heart” of matters.

305    Further, “LE3-012” is an affidavit of Ms Bullen dated 21 December 2022 in the proceedings before Cooper J. The affidavit was made for the purposes of a directions hearing in the proceedings. It set out a procedural chronology and an explanation for delay by the respondents. The Plaintiff relies on that part of the Affidavit whereby Ms Bullen deposes to being a solicitor with CBP, who are the solicitors on the record, and that she has the day-to-day conduct of the matter under the supervision of the partner, Mr Williams.

306    “LE3-016” was also relied on by the Plaintiff in this context. That is an Order of Burns J in proceedings BS13993/22 on an application by the Deed Administrators of Moreton Resources, MRV Bowen Basin Coal Pty Ltd, MRV and MRV Taron Basin Coal Pty Ltd filed on 11 November 2022.

307    Even without the 2020 Judgment and the 2023 Judgment, it would have been clear to the Registrar that there had been litigation regarding the Companies, whilst in liquidation, in receivership and while the subject of a Deed of Company Arrangement. Although that may have been clear, that does not alter the obligation on the Plaintiff or lessen her obligation of disclosure on an ex parte application.

308    However, as considered under the HWLE Parties’ submission of “significant information available and extensive litigation” (at [219] to [235]) for the s 596B summons the quantity of information, being vast amounts of information or a “plethora” of information should have been disclosed to the Registrar. It would be relevant, at least to the exercise of the Registrar’s discretion under s 596B of the Act. As such, it would amount to a material non-disclosure by the Plaintiff on the summons under s 596B of the Act.

3.    October Submissions [36] and [48], together with “LE3-015”

309    These paragraphs of the October Submissions refer to “LE3-015” to support the contention that although the persons sought to be examined are solicitors, the “incumbent Board” and/or the directors of Moreton Resources have waived privilege. This is so full provision of the files held or controlled can be provided. The annexure marked “LE3-015” is a copy of a resolution dated 16 October 2024 of Mr Elks, the Plaintiff, Mr Nigel Stonker and Mr Nicol, as the Directors of Moreton Resources. It states that “any legal privilege be released for Moreton Resources Limited (Purported receivership for assets prior to 3 May 2022) and for MRV Metals Pty Ltd (Purported receivership for assets prior to 3 May 2022) for all matters pertaining to the Companies that legal firms (1) Irish Bentley, and (2) Colin Biggers and Paisley…”. The period nominated in the resolution was from 1 July 2018 to the current date of 16 October 2024.

310    The Examinees submit that the Plaintiff was obliged to bring to the Court’s attention the decision of Carey & Anor v Korda & Ors [2012] 45 WAR 181; [2012] WASCA 228 at [24] and [73]-[84] (Martin CJ, Newnes and Murphy JJA).

311    The Plaintiff argues that she did not make a legal submission about the issue but referred to the factual position. Furthermore, the period included that of prior to the Receivers appointment.

312    No authority was relied on by the Examinees to support the position that the Plaintiff, as a litigant in person (even legally qualified), was obliged to bring a contrary authority to the Court’s attention. Quite rightly, the CBP Parties accepted that the principle from Edison focuses upon a failure to disclose material facts. Given this, it is not necessary to consider this argument further.

313    However, I do observe that the Registrar was aware of this potential issue, which can be taken from the following short exchange on 26 November 2024:

MR ELKS:    So there – one of the affidavits has consent from the existing board to give all that information, so - - -

THE REGISTRAR:     Well, it depends on who is the client in the circumstances, in what capacity they were the client and whether or not that is enough to do something. So look, I dare say that there are going to be – if this examination goes forward, and….

(3)    Plaintiff’s oral submissions and the 6 November hearing

314    The CBP Parties refer to the following, in this respect:

(i)    the October Submissions

(ii)    the hearing before the Registrar on 6 November 2024;

(iii)    affidavit of Mr Elks filed on 12 November 2024;

(iv)    the hearing before the Registrar on 26 November 2024; and

(v)    the hearing before the Registrar on 9 January 2025.

(i)    Non-disclosure regarding Mr Elks

315    The CBP Parties submit that neither the Plaintiff nor Mr Elks informed the Court of what were described as the “suitability issues”, in relation to Mr Elks.

316    The Plaintiff submits that Mr Elks’ “suitability issues” were not matters which required disclosure to the Court. The Plaintiff submits that Mr Elks was seeking to appear at the hearing on 6 November 2024 as the Plaintiff’s agent, not as her legal representative. The broad “suitability issues” which the CBP Parties seek to rely on and submit should have been brought to the Court’s attention were not required, so the Plaintiff submitted, to comply with her duty of disclosure on the ex parte hearing. The Plaintiff did not seek for Mr Elks to legally represent her on the application for the examination summons. Mr Elks acting as the Plaintiff’s agent, in that context and on that limited basis, was different.

317    Part of what are advanced as the “suitability issues” is in relation to Mr Elks not being an admitted legal practitioner. Although it is not always clear, it does appear that the Registrar was under the impression that Mr Elks was an admitted lawyer and therefore an officer of the Court, whereas he was not. This, it is submitted, was a matter which the Court should have been informed about. It is possible to mislead the Court by silence: see the observations in Victorian Building Authority v Andriotis (2019) 268 CLR 168; [2019] HCA 22 at [46] (Kiefel CJ, Bell and Keane JJ).

318    The first part of the transcript relied on was from the hearing on 6 November 2024, just before a limited grant of leave was given to Mr Elks to appear for the Plaintiff as agent pursuant to s 596(5A) of the Act:

THE REGISTRAR:     Yes. Look, I think I probably would want to hear about it further. I think for the purpose of today – and I will be honest, it’s a bit difficult for me to hear some of the submissions you’re making by telephone, and that’s not a criticism, it’s just a function of the technology that we’re working with. I would be prepared to hear from Mr Elks as your agent for today’s purposes only, but only today’s purposes. Whether or not you wish to make a fresh application for him to be your agent going forward, I would hear from you further about – because I think there’s probably a point that needs to be considered more carefully about that.

I mean, if agent is taken with as plain ordinary meaning, then it’s just any person who represents, but fundamentally, I need to make sure that parties are ordinarily represented by lawyers. Mr Elks, I know, has a legal qualification, but that means that he’s an officer of the court, but he’s also someone who is interested in the proceedings, insofar as the fact that he’s a director. So there is a separation element, which troubles me a little, which, you know, with the benefit of further submissions, I might reach a different conclusion on. But I just want to be clear with you about what my preliminary view about the matter is. Is that understood?

MS ELKS:     Yes, that’s understood. Thank you.

THE REGISTRAR:     All right. So, Mr Elks, you’ve got leave for today’s purposes only, because I think it might be easier to hear from you, just given that Ms Elks is currently on the phone and might well be on the move as well.

(emphasis added)

319    By the emphasised passage, it is apparent that the Registrar was of the view that Mr Elks was an officer of the Court. Such a matter should have been corrected. The Plaintiff, in cross-examination, gave evidence that she had not kept up to date with any application that Mr Elks may have made for admission to the legal profession. The Plaintiff also stated that she had never had a conversation with Mr Elks saying that he has been admitted. On this basis, the Plaintiff’s evidence was that she had no positive knowledge that Mr Elks had been admitted as a lawyer and hence was an officer of the Court. Mr Elks would have known his own status that he was not an admitted lawyer.

320    The Plaintiff refers to an earlier passage of the transcript on 15 October 2024, whereby the Registrar recommends that the Plaintiff and Mr Elks obtain some independent legal advice. In this passage the Registrar also observes “even though you have your own legal qualifications as well…”. This earlier reference does not change or assist the Plaintiff. The 6 November 2024 was after this reference, and there is no correction of this position as stated by the Registrar, at the 6 November hearing or any of the subsequent hearings by Mr Elks or the Plaintiff, that Mr Elks was not an admitted legal practitioner and therefore not an officer of the Court. Mr Elks should have corrected the Registrar’s apparent misapprehension, particularly on 6 November 2024, when he was given limited leave to appear and it was on that occasion when the Registrar made this observation. Further, even if the Plaintiff was not positively aware that Mr Elks was not admitted, on hearing the Registrar’s observation, clarification should have been sought. This could have been done simply in open Court (even by her remote appearance) or the Plaintiff could have asked for a short adjournment to clarify the position with Mr Elks. It is clear that the Registrar was placing weight on what he perceived as Mr Elks’ status as a lawyer and officer of the Court. This is important because of the “paramount” or “overriding” duty to the Court. This correction was required by one or the other of Mr Elks or the Plaintiff. This is because Mr Elks was acting as the Plaintiff’s agent, being given limited leave to appear as the Plaintiff’s agent on 6 November 2024 and by the Plaintiff as all litigants are under a duty not to misled the Court: May v Costaras [2025] NSWCA 178 at [14]-[15] (Bell CJ, with whom Payne and McHugh JJA agreed); Ayinde v The London Borough of Haringey [2025] 4 WLR 71; [2025] EWHC 1383 (Admin) at [85]-[86] (Dame Sharpe, President of the King’s Bench Division, and Mr Justice Johnson); JML Rose Pty Ltd v Jorgensen (No 3) [2025] FCA 976 at [101] and [103]. By remaining silent, the Registrar’s apparent misapprehension remained and the Registrar was misled.

321    Later in the same hearing on 6 November 20204, the following exchange occurred:

THE REGISTRAR:     And look, the fact that there is a distinction there between lawyer and agent is important, because ordinarily parties either represent themselves or have a lawyer representing them. But, you know, without seeking to put a gloss on the words there, one would think that the agent acting on behalf of the party to whom leave is granted ought be sufficiently disinterested in things to ensure that they conduct themselves in the manner appropriate, you know, to the conduct of the proceedings. Which I’m not suggesting that you wouldn’t, I’m just trying to talk through my thinking here, but just making sure that given that they are not officers of the court, bound by the same ethical considerations that a lawyer would be in conducting a proceeding before the court, that they are at least cognisant of how they ought conduct themselves, and conduct themselves appropriately so that the court’s proceedings aren’t brought into some kind of state of abuse, or contempt, or disrepute.

MR ELKS:     Yes, I accept that, Registrar. And the last hypothesis I would pose to you, Registrar, if I was to lodge an application either as a – say, a second party, lodge a formal application to the court, would the court therefore allow me to represent multiple parties who are eligible applicants, eg, one mouthpiece, because I would have standing, in any event.

THE REGISTRAR:     Yes. Look, I wouldn’t want to predetermine what the outcome of any such application would be, Mr Elks, but certainly for today’s purposes, I’m happy to hear from you.

MR ELKS:     Thank you.

(emphasis added)

322    This passage is less clear. It is shortly after a submission from Mr Elks regarding s 597(5A) and it does appear that the Registrar might be seeking to expose his thought processes in seeking to construe s 597(5A) of the Act. The Registrar appears to be ventilating and articulating a potential construction, open on the face of the relevant provision, but not by any express application to Mr Elks or to the Plaintiff. This may be why the Registrar is then speaking of “they”. However, this was also in the context of Mr Elks’ submission that he would also have standing as well, as he was also an eligible applicant, such that satisfaction of s 597(5A) may not have been necessary. In seeking to consider this submission it may be that this passage manifests the Registrar’s consideration of the particular position advanced by Mr Elks, such that the observations are applicable to Mr Elks.

323    As observed, this second passage is less clear and it is not necessary to reach any final position about its interpretation. This is because this passage does not ameliorate or otherwise relieve Mr Elks or the Plaintiff from correcting the Registrar’s earlier apparent misapprehension. At its highest this passage creates uncertainty as to the Registrar’s view or understanding of Mr Elks’ position. It does not categorically provide and thereby override the earlier observation that the Registrar knew that Mr Elks was not a lawyer. As such, even if there was uncertainty by Mr Elks or the Plaintiff after hearing this second observation of the Registrar, it was incumbent on them to correct and clarify the position.

324    Mr Elks filed an Affidavit on 12 November 2024, which the CBP Parties argue should have disclosed the “suitability issues”. That was not necessary. However, it was an appropriate time for Mr Elks to address the apparent misapprehension of the Registrar, regarding whether Mr Elks was a lawyer and an officer of the Court. This Affidavit was filed approximately a week after the hearing on 6 November 2024. That would have allowed Mr Elks and the Plaintiff to have reflected upon the exchanges in Court on 6 November 2024 and address any such relevant matters. This was not done, but this would have been a satisfactory method by which Mr Elks and the Plaintiff could have corrected the apparent misapprehension of the Registrar.

325    The CBP Parties then refer to the hearing on 26 November 2024 and refer to a lengthy passage whereby the Registrar expressed his concern regarding the absence of independent and separate representation, in relation to permitting Mr Elks to act as the agent of the Plaintiff. In this context, of considering s 597(5A) of the Act, it was also noted by the Registrar that there had been assurances that it was intended to engage lawyers. The CBP Parties then rely on the following passage:

MR ELKS:     Yes. So potentially that may be a debate, Registrar, but all I would flag is, under procedural fairness and natural justice, Ms Elks has put that application to the court, she does press that matter, and we believe it’s a positive obligation of the court to consider that. In the alternate, there must be some reason or concern the court may have.

THE REGISTRAR:     Well, I’ve indicated what my concern is, that there ought be separate consideration given that a lawyer is bound by ethical duties in how they conduct themselves before the court. An agent is not so constrained, subject to what kind of agent they are. Now, I appreciate that you’re a lawyer, but you’re also an individual who has a close connection with what is ultimately to be examined before the court. And so there is an entwinement there that concerns me about how the examination itself may be conducted in those circumstances.

Which isn’t to suggest that your passions are to become so inflamed by everything that’s going on that you aren’t able to conduct it effectively or efficiently, but it does concern me, and that’s part of the reason why I hesitate to grant leave or grant permission. This is not strictly speaking leave, it’s a “may” provision in the circumstances.

MR ELKS:     Registrar, you’ve made your decision.

THE REGISTRAR:     Well, I haven’t. We’re - - -

MR ELKS:     Right.

THE REGISTRAR:     - - - still debating the issue, Mr Elks. So - - -

(emphasis added)

326    The CBP Parties then refer to another passage, whereby Mr Elks submits, amongst other matters, that “given the detail to which I want the PE to be examined, I actually think I am the appropriate person to undertake the PE.” This highlighted the Registrar’s concern.

327    The Plaintiff submitted that the position was different to that of Mr Bax in Capital Options. Mr Bax was the sole shareholder and director of Capital Options (Aust) Pty Ltd and was a former solicitor. Mr Bax was granted leave to represent the company, Capital Options. Mr Bax did disclose that he had been struck off the roll of solicitors. However, he did not disclose that his application for re-admission was dismissed by the Court of Appeal, nor did he disclose the very dim view that the Court of Appeal took of his conduct. In Mr Bax being granted leave to appear for the company, the Registrar was not made aware of the relevant matter regarding his past conduct and from which it could be concluded he was not a proper person to conduct the proceedings on behalf of the company. This was sufficient to discharge the Orders: Capital Options at [42].

328    However, Mr Elks was not granted leave to represent the Plaintiff and the grant of leave was not in relation to a corporation, where different considerations apply. Further, the grant of leave was on a limited basis, not generally and was to appear as the Plaintiff’s agent, under s 597(5A). That is, Capital Options can be distinguished.

329    Nonetheless, it is clear that the Registrar was under the apparent misapprehension that Mr Elks was a lawyer. This was not corrected by Mr Elks, or more importantly, by the Plaintiff. Furthermore, the Plaintiff also did not seek to clarify her understanding of Mr Elks’ status, in circumstances where her evidence was that she did not have positive knowledge that Mr Elks had been admitted as a lawyer. That is, the Plaintiff had no positive basis to know that when the Registrar stated to Mr Elks “you’re a lawyer” that this was a correct statement. By her silence, the Plaintiff allowed the Registrar to be misled.

(ii)    Submissions by Mr Elks about Ms Bullen

330    With reference to “LE3-012” of the Third Plaintiff Affidavit, being the procedural affidavit of Ms Bullen, Mr Elks submitted that the affidavit was directly relevant to the matters of MRV. The CBP Parties submitted that this was in the absence of disclosing to the Court the “vast amount of information” already available regarding MRV.

331    This is a further example of the matter consider above at [219]-[235] and [302]-[308]. It is unnecessary to repeat those matters.

(4)    Affidavit of Mr Elks and his “suitability issues”

332    The CBP Parties submit that in the circumstances of the 6 November hearing, the affidavit of Mr Elks should have disclosed his “suitability issues”.

333    The Affidavit of Mr Elks was filed on 12 November 2024 and after the hearing on 6 November 2024. As observed above at [314]-[329], Mr Elks should have corrected the position as was apparent at the hearing on 6 November 2024. This subsequent affidavit should have contained such a correction.

(5)    Hearings on 26 November 2024 and 9 January 2025

334    The CBP Parties refer to these hearings and submit that in relation to the 26 November 2024 hearing that again it was clear that the Registrar was under the impression that Mr Elks was a lawyer and nothing was done by the Plaintiff or Mr Elks to correct or dissuade the Registrar of this impression. Further, the hearing on 9 January 2025 was the last opportunity to correct such matters, but this was not done by the Plaintiff.

335    As observed above at [314]-[329], Mr Elks and the Plaintiff should have corrected the position as was apparent at the hearing on 26 November 2024, whether at the 26 November or 9 January 2025 hearing.

Conclusion – the CBP Parties’ non-disclosures were material

336    For the above reasons, there has been material non-disclosures by the Plaintiff, on the ex parte application for the examination summons. In summary based on the CBP Parties’ submissions, on the s 596B applications for examination summons, the Plaintiff should have disclosed and informed the Court about the following:

(a)    the 2020 Proceedings and the 2020 Judgment, including drawing the Court’s attention to the parties involved, issues determined, in this context the Mine Sale Agreement and the Jadar Sale Agreement and the validity of the appointment of the Receivers to MRV;

(b)    the 2023 Proceedings and the 2023 Judgment, including drawing the Court’s attention to the parties involved, noting the absence of Moreton Resources, the issues determined, the failure of Mr Elks to have the Court exercise its discretion to remove and replace the Security Trustee and to explain the directions that were made in 2023 Costs Judgment;

(c)    the controversary regarding the directors’ ability to exercise the powers of directors of Moreton Resources, including by reference to the express terms of the DOCA, the 14 June Letter, the 17 June Letter and other correspondence regarding the controversary (including Mr Hambleton’s email, being Exhibit 12) and the Supreme Court’s Order of 2 December 2022 (Burns J);

(d)    the application made to the Takeovers Panel, particularly as the TP Decision was provided and therefore, the application should have also been provided to the Court. This would have also brought to the Court’s attention some of the complaints made by the Plaintiff. However, that is not the underlying basis for why the document should be provided. The TP Decision was short and effectively summarily dismissed the application. As such, the application document itself would have been informative and was accepted by the Plaintiff to have been relevant;

(e)    the Plaintiff should have informed the Registrar of the “plethora” of material that the Plaintiff had or had access to, as it would be relevant to the exercise of the Registrar’s discretion under s 596B of the Act; and

(f)    the Plaintiff should have corrected the apparent misapprehension that the Registrar was acting under in relation to Mr Elks being a lawyer. The Registrar was clearly weighing the circumstances of Mr Elks being a lawyer who owed the paramount duty to the Court, together with his close association the subject corporations. In the result, the Registrar did not allow Mr Elks to act as the Plaintiff’s agent (Order of 26 November 2024). However, he did permit Mr Elks to take part in the examination commenced by the Plaintiff. The decision of the Registrar could have been different if the apparent misapprehension had been corrected.

337    However, although the applications under s 596A were still made on an ex parte basis, the scope and content of the duty of disclosure is different. As has been explained, it is on this basis that the s 596A applications were not the subject of material non-disclosure.

Consequences of insufficient disclosure – s 596B summonses

338    The Examinees submit that in circumstances of material non-disclosure, the order so obtained should be set aside. This was primarily based on Isaacs J in Edison where his Honour stated that “the order so obtained must almost invariably fall.”

339    The Plaintiff submitted that if material non-disclosure is found, then a discretion arises as to whether to set aside the order, so obtained. In all the circumstances, the Plaintiff submitted that in exercising the discretion, the Court would not set aside the orders for the examination summonses.

340    Consideration of this issue commences with the passage from Edison, earlier set out in these reasons. With reference to Edison, the Full Court in Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540; [1988] FCA 557 at 543 (Davies, Gummow and Lee JJ) stated as follows (without setting out the quoted passage from Edison):

At the outset it may be stated that the order obtained ex parte by the applicants was properly discharged. At the time the applicants obtained that order, the applicants had failed to disclose to the Court that arrangements were in train for the disposal of part of the secured property which disposal may have resulted in payment of some unsecured creditors at the expense of the secured creditor. The applicants had a duty to disclose these relevant facts to the Court upon the hearing of their application for an injunction to restrain the respondent from exercising its rights under securities provided by the applicants.

The failure of the applicants to make full disclosure of all facts relevant to the application for an interim injunction in itself necessitated the discharge of the order granted. A party who seeks the granting of an injunction on an ex parte basis has a duty to place before the Court all relevant matters including such matters which would have been raised by the respondent in his defence if he had been present. As was stated by Isaacs J in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681-682:

…

The rationale behind the principle is clear; it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts.

The principle applies to an application to discharge or dissolve an ex parte interim injunction; the discharge of that injunction does not prevent a fresh application being heard and determined in the light of all relevant facts: see Barneys Blu-Crete Pry Ltd v Australian Workers’ Union (1979) 43 FLR 463 at 475.

(emphasis added)

341    The language of the Full Court is that the failure or non-compliance with the duty of disclosure on the ex parte application “necessitated” the discharge of the order. Stewart J observed in Element Zero Pty Ltd v Fortescue Ltd [2025] FCA 206 at [16] that the quoted passage from Edison by the Full Court in Town & Country did not contain the word “almost” in the authorised report or the original judgment. That is so. Stewart J observed that the Full Court was not intending to depart from what was said by Isaacs J in Edison. I agree. The reasoning of Isaacs J, when considered in full, with the reference to the sentence explaining why his Honour added the word “almost”, is clear. Generally, or ordinarily (as used by Gageler J, referred to below) an order obtained by a party ex parte in circumstances where there has been a material non-disclosure, will usually fall. However, there remains available to the Court a discretion, in an exceptional case, for the order to remain.

342    The Full Court’s description that the failure to make full disclosure of all facts relevant “necessitated” the discharge of the order was in the circumstances of that particular matter and is the application of the general or ordinary position. That case was not one where exceptional circumstances arose which then warranted a consideration of the Court’s discretion. There was no expansion by the Full Court of the applicable principle.

343    In Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678, Mahoney AP, with whom Clarke JA agreed at 682, stated as follows:

…With respect, I would take a different view and my difference lies in the realm of principle. It is, in my opinion, important that the extent of the duty (“a most serious responsibility”) imposed upon a person applying to a court ex parte be not qualified and that failure to observe that duty be properly sanctioned. The principle is stated by Isaacs J in terms indicating that an order obtained in breach of it will “almost invariably” be set aside. This, in my opinion, is not one of the exceptional cases in which it will not. The court should set aside an order or certificate obtained in breach of the rule and should do so with costs. If the party be entitled to the relief following full disclosure, the relief may be obtained upon a subsequent and a proper application.

344    In Aristocrat Technologies Australia Pty Ltd v Allam (2016) 327 ALR 595; [2016] HCA 3 at [14]-[15], Gageler J stated as follows:

14    There remains the question of whether it is appropriate to consider making any order on the applicants’ summons in advance of remitter. Were it not for the material non-disclosure in the evidence filed on behalf of Mr Allam and Tonita in support of the applications made by them ex parte on 17 December 2015 and 21 January 2016, I would consider it a sound exercise of discretion to defer all issues between the parties or putative parties for consideration of the Federal Court. That non-disclosure having been noticed, however, it cannot go unremedied.

15    It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested.

(emphasis added – footnotes omitted)

345    To a similar effect are the observations of Applegarth J in Heartwood Architectural Timber and Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499; [2009] QSC 195 at [32] and Martin J (as the Senior Judge Administrator then was) Mineralogy at [86]-[92].

346    Reference was also made to Lander J, with whom Cox and Bleby JJ agreed, in Southern Equities at 423-424, where his Honour stated, after referring to the same passage from Edison:

I do not agree with the submission that the order must necessarily be set aside when a material non disclosure has been established. In Thomas A Edison Ltd v Bullock, supra, after the passage quoted above Isaacs J said:

I add the word “almost” in deference to such an exceptional case as Holden v Warterlow 15 WR 139.

Clearly enough Isaacs J recognised that there may be circumstances when the order need not be set aside and in my opinion it is not always the case that the order obtained must be set aside.

It cannot be said that an order obtained in circumstances where there has been a failure to disclose material facts must necessarily be set aside. Whether or not the order ought to be set aside for failing to disclose material facts will depend upon the facts not disclosed and the circumstances in which the non disclosure came about. An error of judgment in failing to disclose a fact which later becomes material may not necessarily lead to the setting aside of the order previously obtained. So also an innocent non-disclosure may not necessarily require the setting aside of the order for the examination.

On every occasion where there has been a non-disclosure and an order obtained it will be a matter of inquiry as to whether or not that non disclosure should lead to the setting aside of the order.

However, even if the order is set aside that is no bar to an application for a further order. In Thomas A Edison Ltd v Bullock, supra, Isaacs J said that while in the ordinary course of events the injunction should be dissolved that would not have prevented the plaintiffs from applying de novo for an injunction upon the merits as they later appeared. So also the Full Court of the Federal Court said in Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific, supra, that the discharge of the injunction did not prevent a fresh application being heard and determined in the light of all the relevant facts.

(emphasis added)

347    The Victorian Court of Appeal, Gillard AJA, with whom Ormiston and Buchanan JJA agreed, in Savcor after referring to the above quoted passage in Edison, with the sentence that “I add the word “almost” in deference to such an exceptional case as Holden v Waterlow” at [27]-[28] stated:

27    Two observations need be made. The first is that the obligation is to disclose all material facts, that is, facts material to the decision. Secondly, whether or not the order be set aside is a matter of discretion. In Lazard Brothers & Co v Midland Bank Ltd, Lord Wright said:

… The Court has discretion to set aside an order made ex parte when the applicant has failed to make sufficient or candid disclosure.

28    Modern cases have recognised that the court does have a discretion whether or not to set aside an order where there has been a failure to disclose material facts.

(footnotes omitted)

348    In Savcor, Gillard AJA refers to several English decisions, including summarising at [36] the decision in Mat Ltd v Elcombe [1988] 1 WLR 1350. Gillard AJA describes the position thus at [33]:

33    In my opinion a court does have a discretion to not set aside an order despite a material non-disclosure or misrepresentation of law or fact. Setting aside does not follow as a matter of course. Relevant to the discretion is whether the material non-disclosure was serious or otherwise the importance or weight that should be attached to the omitted fact in the decision making process and also any hardship if the order was set aside. The approach is different if the plaintiff has acted culpably in the sense that the omission to disclose relevant matters was done deliberately to mislead the court. The most likely result in those circumstances would be that the order would be vacated.

349    The weight of authority, including the position enunciated by Isaacs J in Edison and that of intermediate appellate courts in another jurisdiction (Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ)), all support and are consistent with there being a discretion available to the Court, having established that there has been material non-disclosure.

350    The description by Isaacs J is one to be exercised in certain exceptional, rare circumstances. The example given by Isaacs J at 682 was the “exceptional case” of Holden v Waterlow 15 WR 139 (Turner LJ with whom Cairns LJ agreed) where although the plaintiff initially obtained an injunction ex parte, it was done in circumstances of a material non-disclosure. A motion to discharge that first injunction was refused and on the same day, with full and frank disclosure, a second injunction was granted. There were costs consequences in relation to the first injunction. That is, although the plaintiffs initially failed to comply the duty of disclosure, this was remedied by their own later actions.

351    The passage relied on from Isaacs J is not such as to require an order obtained in circumstances of material non-disclosure to always be set aside. In exceptional circumstances, it is apparent that there may be circumstances whereby the order so obtained would not be set aside. However, such circumstances would be rare, given that the order so obtained “must almost invariably fall.” To phrase it another way, an order obtained in circumstances of a failure to comply with that duty of full and frank disclosure will generally or ordinarily (as described by Gageler J in Aristocrat) be sufficient to discharge that order. The underlying principle for this position is the paramount importance in the due administration of law that the Courts and the public are to have in the administration of justice, particularly in circumstances where a party obtains an ex parte order, being in the absence of the person affected, which should only be obtained after compliance with that party’s duty of full and frank disclosure: Edison at 681-682; Aristocrat at [15]; Town & Country at 543; Southern Equities at 423-424; Savcor at [27]-[28].

352    The reasoning set out above of Lander J, requires, on every occasion where there has been a non-disclosure, an inquiry as to whether or not that non-disclosure should lead to the setting aside of the order. That is, that a discretion arises, to be exercised judicially, in circumstances of non-disclosure. However, as already explained that, is not inconsistent with Isaacs J in Edison and as described by Gageler J in Aristocrat. I agree with Lander J’s observations that it is not correct that an order obtained when a material non-disclosure has been established must necessarily be set aside. The ordinary position, that is in the absence of exceptional circumstances, is that when a material non-disclosure has been established the order is usually or ordinarily set aside. However, that is to recognise that on material non-disclosure being established, a discretion is available.

353    As I am satisfied that the Plaintiff failed to comply with her duty of disclosure on the ex parte application for the examination summons, it is necessary to consider whether, as an exercise of discretion, the examination summonses issued pursuant to s 596B should be set aside.

Intentional or Inadvertent non-disclosure

354    The Plaintiff submits that if any material non-disclosure is found, it was inadvertent. This is said to be relevant in the exercise of the Court’s discretion. Further, it is submitted that the inadvertence can be explained as the Plaintiff was seeking to obtain examination summonses, apart from those to Mr Williams, Mr van Staden, Ms Bullen and Mr Murray, under s 596A of the Act. This focus, the Plaintiff submitted, is said to be supported by a portion of the transcript from 15 October 2024 and exchanges with the Registrar. That page of the transcript does make express reference to s 596A and appears to be the Plaintiff addressing the Registrar in relation to the mandatory examination summonses sought.

355    The Plaintiff’s OA sought most of the examination summonses on the basis of s 596A of the Act, however, not only on that basis. The First Plaintiff Affidavit is consistent with this position, mainly focusing upon s 596A matters, but also making some statements and providing some evidence relevant to the discretionary summonses sought pursuant to s 596B. The Second Plaintiff Affidavit also filed before the first return date (apart from the first two opening paragraphs) only addressed matters that the Plaintiff considered relevant under the s 596B applications. The entire transcript from 15 October 2024 reveals the Plaintiff addressing the Registrar on both the mandatory and discretionary summonses sought, and in relation to the terms of the orders to produce. However, it is necessary to consider the whole of the hearing and material prior to the Orders being, to exercise the discretion.

356    By the time of the hearing on 6 November 2025, the Plaintiff had filed the October Submissions and the Third Plaintiff Affidavit. The October Submissions address both s 596A and s 596B and maintain the original position of seeking all of the summonses but those against Mr Williams, Mr van Staden, Ms Bullen and Mr Murray (who were sought to be summoned under s 596B) to be summoned pursuant to s 596A of the Act. The Third Plaintiff Affidavit followed a similar structure.

357    At the hearing on 6 November 2024, although remaining ex parte, it would have become clear to the Plaintiff that there were potentially some difficulties with some of the applications for mandatory examination summons under s 596A of the Act. This would have been even more apparent on receipt of the Registrar’s provisional indication in the 14 November email, and then the hearing on 26 November 2024. That is, the focus of the hearing changed, during the hearing process. Therefore, although it can be accepted, as far as it goes, that initially the Plaintiff’s application for examination summonses were predominantly focused upon mandatory summons, that was not exclusively and that changed.

358    The Plaintiff always sought discretionary summonses to be issued, relevantly as against Mr Williams, Mr van Staden and Ms Bullen. From the October Submissions and the Third Plaintiff Affidavit, it is evident in relation to these discretionary summonses that the Plaintiff was relying on the Mine Sale Agreement, the 2020 Costs Judgment, the 2023 Costs Judgment and the Affidavits of Mr Williams and Ms Bullen in those proceedings, the 14 June Letter and the TP Decision, to establish that these proposed examinees may be able to give information about the examinable affairs of the Companies. All of these matters have been the subject of complaint regarding the Plaintiff’s failure to comply with her duty of disclosure, which has been accepted.

359    The Plaintiff only put before the Court four pages of the Mine Sale Agreement. The Plaintiff did not explain or suggest in any of her affidavits that she only had the four pages of Mine Sale Agreement available. The Registrar was taken to the Mine Sale Agreement and the mark of CBP was identified. The Plaintiff submitted that Mine Sale Agreement was a significant event that CBP had involvement in with MRV. The Mine Sale Agreement was also a central importance given the relief sought by Mr Elks in the proceedings heard by Cooper J, seeking declaratory and other relief concerning, amongst other matters, the distribution of monies held by the Receivers following the completion of the Mine Sale Agreement.

360    When seeking to rely on a document before the Court, it is unusual to only provide part of that document. A contractual document will usually need the entire document for it be properly understood, as it will often contain schedules, definitions and the operative clauses. The Plaintiff offered no explanation as to why she only provided the Court with four pages of the Mine Sale Agreement. In the Fourth Plaintiff Affidavit, the proposed examinees of Mr Kirk and Mr Joiner (the Receivers), and Mr Williams and Ms Bullen are identified and said to be able to give evidence in relation to the Mine Sale Agreement. The suggested relevance of this document and transaction is inconsistent then with the Plaintiff only providing four pages of the document to the Court.

361    It would necessarily have been a deliberate act to separate the first four pages of the Mine Sale Agreement and only annexe those pages, rather than the whole document. Some thought processes by the Plaintiff would have been necessary. This was not explained by the Plaintiff despite the CBP Parties’ submissions raising this issue being dated 26 May 2025. No leave was sought to file an additional affidavit, when the hearing was set to commence on 12 June 2025.

362    The Plaintiff also did not provide the Court with the 2023 Judgment. The Plaintiff in the Fourth Plaintiff Affidavit states that she has read the 2023 Judgment. The Plaintiff does not state the date when she read the 2023 Judgment, but it was before she appeared before the Registrar on the application for examination summons. The Plaintiff also does not properly explain why this judgment was not put before the Court on her applications for examination summonses. In so far as the Plaintiff suggested that she did not want to provide voluminous material (T-73) which was only to confirm that the proposed examinees may be able to provide information in relation to the examinable affairs of the Companies, it was thought to be unnecessary. This is particularly relevant when the Plaintiff did have in her material the 2023 Costs Judgment. The Plaintiff stated, in response to a question as to why the 2023 Judgment was not provided that “Again, I didn’t need to provide the full information.”

363    In so far as it might be suggested that the relevance of either judgment was simply to establish the involvement of CBP, that might be so. However, that is insufficient and in the absence of any proper explanation by the Plaintiff as to why she included the 2023 Cost Judgment but not the 2023 Judgment, I draw the inference that the 2020 Judgment was not before the Court because of a deliberate decision by the Plaintiff. This is because the Plaintiff read the 2023 Judgment before appearing before the Registrar, as such the Plaintiff would have been aware of the detailed consideration given to the matters in dispute in the 2023 Proceedings, then resolved in the 2023 Judgment. The Plaintiff, however did place before the Court the subsequent 2023 Costs Judgment. If the Plaintiff had of placed before the Court the full Mine Sale Agreement and the 2023 Judgment, the Court would have been able to ascertain that the Mine Sale Agreement was a feature of that judgment. Moreover, to properly understand the 2023 Costs Judgment, consideration of the 2023 Judgment would also be necessary (as explained earlier in these reasons). The Registrar would also have been aware of the substantive matters comprehensively considered by Cooper J.

364    In the Fourth Plaintiff Affidavit the Plaintiff says in relation to matters to be examined with Mr Feitelson are:

The “February 2020 Agreement” referred to in Elks v Melgear Pty Ltd & Ors [2023] QSC 150.

365    The Plaintiff does not refer to particular paragraphs of the 2023 Judgment, in relation to the February 2020 Agreement, nor does she identify that Cooper J made findings about the proper construction of the February 2020 Agreement. In her evidence, the Plaintiff stated that the February 2020 Agreement was not the only reason nor the core reason why she sought to examine Mr Feitelson. However, the Plaintiff does not then explain why she made that reference to the February 2020 Agreement in the Fourth Plaintiff Affidavit, why that document was to be the subject of examination with Mr Feitelson (as stated in her affidavit) or what were the core matters to covered with Mr Feitelson.

366    The Plaintiff also did not provide the Registrar with the 2020 Judgment. The Plaintiff read this judgment as well, around the same time as the 2023 Judgment, but similarly provided the Registrar only with the 2020 Costs Judgment, but not the substantive judgment being the 2020 Judgment. In that context there is no explanation by the Plaintiff as to why this was done by the Plaintiff. The primary relief in the 2020 Judgment was in relation to a declaration regarding the appointment of the Receivers. Flanagan J held that the declaratory should be refused.

367    In the Fourth Plaintiff Affidavit, the Plaintiff says that matters to be examined with Mr Feitelson are:

The proceeding in which the judgment of Moreton Resources Ltd (in liq) and Orrs v First Samuel Limited and Ors [2020] QSC 339 [2023] QSC 339.

368    Again, the Plaintiff does not refer to particular paragraphs of the 2020 Judgment. Further, there has been no appeal from the 2020 Judgment. As such, it is difficult to understand what would be the value in examining Mr Feitelson, or others regarding the arrangements, transactions and documents the subject of the 2020 Judgment. The only possible explanation that was given was as follows:

Why is it of concern to you that the receivers sold for 6 and a half million dollars assets which the liquidators were going to sell for half a million dollars?---Again, the whole history and interaction of Moreton Resources and the appointment of voluntary administrators, the background to that, the legal advice, the potential sale of 500, then the actual sale of 6.5, puts everything into considering, and as such, I want to be able to conduct a public examination around the examinable affairs of the organisation. If there’s nothing wrong with that, great. Move on. But I have applied for a public examination to be able to make the appropriate inquiries through the appropriate examinees who may be able to provide information.

369    However, this does not assist the Plaintiff with providing a proper explanation as to why she included the 2020 Cost Judgment but not the 2020 Judgment. I draw an inference that the 2020 Judgment was not before the Court because of a deliberate decision by the Plaintiff. This is because the Plaintiff read the 2020 Judgment before appearing before the Registrar, and as such the Plaintiff was aware of the detailed consideration given to the appointment of the Receivers in the 2020 Judgment. The Plaintiff, however, did place before the Court the subsequent 2020 Costs Judgment.

370    Annexed to the Second Plaintiff Affidavit was the 14 June Letter, which is signed by the Plaintiff as director of Moreton Resources. The letter is addressed to Mr Van Staden at CBP. The letter was sent by email, but the covering email by which it was sent, was not included in the Second Plaintiff Affidavit Annexure. The covering email was substantive and not simply an email stating, “please find attached”. The Plaintiff also signed off the email as director of Moreton Resources. The covering email also made a demand for the return of files, records and documents of Moreton Resources, including MRV (amongst others). The covering email also referred to previous correspondence (not included) and made serious allegations against the solicitors of CBP.

371    The Plaintiff when preparing her material would have had to effectively separate the covering email and the attached, to only annex the 14 June Letter to the Second Plaintiff Affidavit. The Plaintiff stated that she did so, because she did not think the covering email was relevant. Whether or not that is correct or true, it means that the Plaintiff deliberately separated these documents and only placed before the Registrar the 14 June Letter. It was not by inadvertence, being by oversight.

372    Further, the 14 June Letter represented that the Plaintiff as a director had the power to request the return of the Companies’ files, and that this had been ignored or refused. A letter from CBP dated 17 June 2022 to the Plaintiff stated that, in their view, the directors’ powers remained suspended as a matter of law. A letter from Mr Kirk as receiver dated 17 June 2022, also stated that he was of the view that the directors (therein referred to as the Board) had no power to act. On 18 June 2022, Mr Hambleton, as joint and several Deed Administrator, wrote to the Board of Directors of the Moreton Group, stating that it was acknowledged that the Board would “be undertaking these duties”, being a reference to their directors duties. Further, Mr Hambelton stated that the correspondence could be relied on in fulfilling “your” director’s duties.

373    There was clearly a controversy as to whether the directors had power to act at that time.

374    However, in the Plaintiff’s evidence, initially she did not accept that she knew that there was a dispute or a controversary about whether the directors of Moreton had power to act on behalf of the company. It was at this point that the Plaintiff’s evidence should be noted:

… It’s correct, isn’t it, that you never informed the Registrar that there was a big dispute about whether the directors of Moreton Resources had the power to make that request?---So what was presented to Registrar Buckingham was that I was an eligible applicant and I presented information in my affidavits that confirmed either 596A or 596B examinees could provide or may be able to provide information into the examinable affairs of Moreton Resources. That was what was presented to Moreton – to the Registrar.

When you appeared before the Registrar, you knew that the power – sorry. You knew that your power as a director to make the request contained in the 14 June letter was controversial; didn’t you?---No.

…

You knew that there was a controversy about your power as a director to write the 14 June 2022 letter, and you knew that as at 17 June 2022; agree?---You have one view. I have another view in our correspondence.

Yes. So that’s right. There were two competing views, weren’t there?---Correct.

And that’s a controversy, is it not?---That’s how you’re interpreting it. Yes.

So you knew there as a controversy, didn’t you?---There’s a differing of opinion, yes.

Yes. And it’s not a difference of opinion you told the registrar a thing about, is it?---Again, I can’t confirm without going to transcripts or going to what’s submitted in the affidavits and submissions.

375    The Plaintiff was initially unable to accept the reasonable proposition being put to her that there was a controversary, a dispute, a difference of opinion in relation to whether the directors had power to act or not. The questions being asked were not seeking to resolve that controversary or to suggest that the Plaintiff was wrong in her view, simply that there was a controversy. Ultimately, from both of these passage, the Plaintiff does seem to recognise the difference of views:

It’s correct, isn’t it, that when you emailed this letter to CBP, you knew that CBPs position was that the request which the directors had made for the files was a request which the directors had no power to make?---So as I said earlier, I continue my view of our right to have the Moreton files.

Well, let’s – can you try to answer my question, please? When you emailed the letter to CBP, you knew that CBPs position was that the request which the directors had made for the files was a request the directors did not have power to make. That’s right, isn’t it?---That’s CBPs position, and I’ve outlined that we don’t agree with CBPs position.

376    This difference of views about whether the directors had power to request the files from CBP was not put before the Registrar on the applications for the examination summons. The scenario that the Registrar was faced with, on the material provided was that the Plaintiff as a director of Moreton Resources had properly and within power, sought the Companies’ files and those had not been provided (see OA at [3]). Ultimately the Plaintiff did accept that CBP had a different position or a differing opinion and that this was not brought to the Registrar’s attention.

377    This matter was relevant to the s 596B applications, as against the Mr Williams, Mr van Staden and Ms Bullen. The Plaintiff was aware of the differing views, she had the correspondence which outlined those positions, however, she did not bring it to the Court’s attention. This was not by inadvertence. The Plaintiff was seeking to advance her applications for examination summon in a particular and deliberate way. I am satisfied that the controversary surrounding the 14 June Letter and the director power to request files was deliberately not disclosed to the Registrar on the applications for examination summons.

378    The TP Decision was before the Registrar, however, the only part of the TP Decision to which the Registrar was taken was the part which quoted from the Plaintiff’s application to the Takeovers Panel. The Plaintiff accepted that the Registrar was not taken to any other part of the TP Decision. This begs the question, if the only part which was relevant was the part quoted from the application to the Takeovers Panel, why not put the application to the Takeover Panel before the Court? The application to the Takeovers Panel was a document that the Plaintiff drafted and signed and dated 4 July 2022. The application was seeking a declaration of unacceptable circumstances. The attached details of the application was a lengthy document. That attachment contained many serious allegations against Mr Williams and Mr van Staden. It is unnecessary to repeat those allegations. It is sufficient to observe that the application to the Takeovers Panel was not before the Registrar, but the TP Decision. However, the only portion referred to was a section quoting from the application to the Takeovers Panel. The inference that I draw is that the application to the Takeovers Panel was actually the document that the Plaintiff sought to rely on, but given the content of that application, the Plaintiff decided not to put that document before the Court.

379    In relation to these specific documents that the Plaintiff relied on for the applications for discretionary examination summons, for all of the above reasons, I am satisfied that the material non-disclosure was deliberate.

380    The other documents and matters for which I have accepted that there has been material non-disclosure should also be considered.

381    The Plaintiff included a copy of the DOCA in her material before the Registrar, however, it was buried in the Plaintiff’s material and the Plaintiff did not draw it to the Registrar’s attention. It was not properly described in the index to the annexures to the Plaintiff’s Affidavit or in the Affidavit itself. There was no contrary evidence that the Plaintiff did not prepare the Third Plaintiff Affidavit. Further, the Plaintiff was representing herself and would have been aware that the DOCA was in her material, having prepared her own material, but then did not draw it to the Registrar’s attention. This was somewhat unusual, in that it was entered while the Companies were in liquidation. Furthermore, the Plaintiff executed the DOCA as a director of each of Moreton Resources and MRV. For these reasons, the material non-disclosure by the Plaintiff in relation to the DOCA, by the Plaintiff was deliberate.

382    The Plaintiff stated in her first Affidavit that she was shareholder of each Moreton Resources and MRV. To support that position the Plaintiff annexed a document from 2019. This would have been a document deliberately included in the annexures to the Affidavit to support her position of being a shareholder. It was not current. The position which was ultimately available from the August ASIC searches did not support her statement. As earlier observed, it was incumbent upon the Plaintiff to correct and clarify this position. Given the Plaintiff would have drafted her own affidavit, it was a deliberate that it stated she was a shareholder. The Plaintiff would have known what the correct position in relation to her shareholding was. As earlier observed, if that position changed from the August ASIC searches, then the Plaintiff should have corrected this matter.

383    The Plaintiff decided which material to include in her Affidavits in support of seeking the examination summons and what not to include. The Plaintiff deliberately included the 2020 Costs Judgment and the 2023 Costs Judgement, without including the substantive 2020 Judgment and 2023 Judgment. As is observed above, the quantity of information available, including the “knowledge” that the eligible applicant has available to them is relevant, in relation to the Court’s exercise of its discretion. The Plaintiff stated that she did not want to provide a voluminous amount of material to the Court, for it to consideration. Of course, she did not have to. The Plaintiff could have simply included a list of material that she had available, the litigation and other investigations, action or actions that the Companies or she has been involved in, in relation to Moreton Resources or MRV. This would have informed the Registrar for the purposes of exercising the discretion under s 596B of the Act. The Plaintiff did not do that and deliberately did not put material before the Court. The Plaintiff seemed to be operating on the basis that, in relation to s 596B, all she needed to do was provide material to satisfy the requirements of s 596B(1)(b)(ii) and that would be sufficient. However, as the section is the subject of the Court exercising its discretion, even to deny the examination summons when s 596B(1)(b)(ii) is satisfied, the mere satisfaction of that section could not be sufficient.

384    Further, had the Plaintiff properly disclosed the full terms of the Mine Sale Agreement, with the 2020 Judgment, the 2023 Judgment and taking the Court to the DOCA, a very different impression of the facts and circumstances of Moreton Resources and MRV, and the matters that should be investigated would have been presented. All of this would have been relevant when the Court was exercising its discretion.

385    When the Plaintiff gave evidence, she accepted that she obtained the affidavits of Mr Williams and Ms Bullen from Mr Elks. However, initially the Plaintiff gave evidence that she did not ask Mr Elks for all of the affidavits from that proceeding. However, when asked further questions the Plaintiff gave the following evidence:

But, you see, what I’m getting at is this, you’ve gone to Mr Elks and you’ve got these two affidavits from him to make your application for the examination orders before the registrar. And you told me a moment ago that you didn’t ask him for anything else by way of affidavits from the proceeding?---I don’t know exactly what I asked him for. I would have to flick through it. Again, this is several months ago. I would have to go through and go, what did I get from him? What didn’t I? And I – again, if I did get anything from him, I think it’s quite irrelevant. Again, the purpose of these documents is to demonstrate the parties have and continue to be able to provide information on the examinable affairs.

386    The Plaintiff did not agree that the affidavits relied upon of Mr Williams and Ms Bullen were “irrelevant” but offered the following answer:

See, what I’m suggesting to you is this. That you got from Mr Elks two rather irrelevant affidavits from the proceeding that Mr Elks brought, and those are what you showed to the registrar. Do you agree with that?---I don’t agree with it. As I have outlined, the purpose was to provide Registrar Buckingham with sufficient documentation that has people’s names next to certain activities that confirm that they may be able to provide information around documents, records, transactions, dealings, etcetera of Moreton Resources. The content is irrelevant.

(emphasis added)

387    The Plaintiff then clarified that what she asked Mr Elks for, from those proceedings “I merely asked for example of where these parties – or what documents are available to prove that these parties may be able to provide information into the examinable affairs.” This, the Plaintiff accepted, was after the trial had occurred before Cooper J. However, the Plaintiff regarded that as an “irrelevant fact”. The Plaintiff stated, in response to the question whether she knew that the judgment had been delivered:

Yes, I did. But again, if you go back to my affidavit, this case is not to re-prosecute it, but it definitely provided additional questions. My evidence and my affidavit supports that these parties can provide information that I seek.

But why didn’t you ask Mr Elks to provide you with everything from the proceedings?---Because I didn’t need everything from the proceeding.

(emphasis added)

388    There was no appeal by Mr Elks from the 2023 Judgment. This evidence of the Plaintiff is difficult to understand and reconcile. Without an appeal, it is difficult to understand how the 2023 Judgment “provided additional questions”, but that it was not sought “to re-prosecute” those matters. Furthermore, the Plaintiff was able to acquire some material from the proceedings that were heard by Cooper J from Mr Elks. However, the Plaintiff was of the view that she did not require all of the material, just enough to establish that the proposed examinees may be able to give information about the examinable affairs of the corporation. The Plaintiff stated she “had enough information in front of me that confirmed that these parties … could provide information into the examinable affairs”. This is in a context of seeking this material to satisfy the requirements of s 596B in relation to these proposed examinees (Mr Williams, Mr Van Staden and Ms Bullen), which are expressly “discretionary examinations”, sought on an ex parte application. It is clear that the Plaintiff was aware of the different requirements for a s 596B summons, as these are separately and differently addressed in her material.

389    The Plaintiff gave evidence that she regarded the content of the affidavits as being irrelevant, that it was the people’s names next to certain activities which was important. Further that it was irrelevant what material she did or did not obtain Mr Elks. Such evidence may support a finding that the Plaintiff was ignorant of what was required on the s 596B application and therefore the material non-disclosure was inadvertent.

390    However, the better view of the Plaintiff’s conduct in this regard is that the Plaintiff deliberately chose to ignore or not seek out obvious information which was available to her. There was no suggestion or evidence from the Plaintiff that Mr Elks would not have provided her with all of the material from the proceedings heard by Cooper J, if she had asked for it. She did not. The Plaintiff was not simply “not knowing” but was deliberately choosing not to know what all of the evidence or material was available from the proceedings heard by Cooper J. This is in circumstances where the Plaintiff emphasised that what she was seeking to do was to properly understand the position of the Companies, by gathering information, identifying assets, investigating claims and matter which lead to the Companies being placed in external administration. An apparent source of information, given that some Affidavits were provided from Mr Elks to the Plaintiff, was Mr Elks in relation to the proceedings heard by Cooper J. The approach and the Plaintiff’s position that the content of the affidavit was irrelevant and what information she did obtain from Mr Elks was irrelevant, support a deliberate approach of the Plaintiff to only seek to put before the Court just enough evidence to satisfy the requirements of s 596B(1)(b)(ii), not to properly inform the Court in relation to the exercise of its discretion and not to comply with her duty of disclosure on an ex parte application.

391    There is nothing exceptional about the circumstances of this case, such that it would fall into the rare, exceptional case of enlivening the discretion, to consider whether to set aside the order obtained when material non-disclosure has been established. This matter is within the ordinary circumstances whereby the material non-disclosure is sufficient to warrant that the order obtained on the ex parte application to be set aside.

Conclusion – Compliance with Duty of Disclosure

392    Therefore, for all of the above reasons and as the Plaintiff was acting for herself in preparing her material, it is the Plaintiff who has been acting as director (with or without power) on behalf of Moreton Resources and it is the Plaintiff which is seeking to obtain these examination summons, I am satisfied that the material non-disclosures were deliberate. The evidence of the Plaintiff was that she was only attempting to satisfied the requirements of s 596B(1)(b)(ii), on a strict reading of that provision. The Plaintiff did not seek to comply with her duty to make full and frank disclosure of all matters which may impact upon the decision to summon a person for examination about a corporation’s examinable affairs, as is required on an ex parte application.

Conclusion – Material Non-Disclosure

393    There has been material non-disclosure by the Plaintiff, in so far as it relates to the s 596B examination summons. I accept that the better view of the authorities, including Edison, is that upon finding material non-disclosure a discretion is enlivened. Generally, or ordinarily where there has been deliberate material non-disclosure the orders resulting from which will be set aside. There are no exceptional circumstances or matters which puts this matter as one of those rare cases that would mean the discretion should be exercised to maintain the order so obtained. There is nothing in the circumstances of this case which can properly be described as exceptional in relation to the obtaining of the ex parte orders (in the sense described in Edison).

394    It is ordinarily sufficient that in circumstances of material non-disclosure, the orders so obtained should be set aside or discharge. In relation to the discretionary examination summons, that is appropriate in the circumstances of this case.

The Complication – Mr van Staden

395    On 12 June 2025, Mr van Staden and the Plaintiff entered consent orders as follows (without setting out Annexure A):

THE COURT ORDERS, BY CONSENT, THAT:

1.     Mr Brent Van Staden have leave to discontinue his participation in the applications filed on his behalf on 29 January 2025, 30 January 2025, 8 April 2025.

2.     The Annexure to the Production Order directed to Mr Van Staden dated 9 January 2025 be varied as set out in the Annexure “A” to these orders, to be complied with within 7 days of these orders.

3.     Mr Van Staden attend before the Federal Court of Australia to be examined pursuant to the Summons on a date to be fixed by the Court.

4.     Mr Van Staden pay the Plaintiff’s costs fixed in the sum of $7,500 to the Plaintiff, by 30 June 2025.

5.     There otherwise be no order as to costs as between Mr Van Staden and the Plaintiffs.

396    The CBP Parties submitted that they would be required to meet a threshold of “exceptional circumstances” to vary or set aside the above consent order.

397    To consider that issue properly, the parties will be given an opportunity to be heard, after the delivery of these reasons.

Conclusion – Material Non-Disclosure

398    Therefore, the discretionary examination summons issued to the following people will be set aside and discharged, being:

(a)    John Kevin Haley;

(b)    Brett Garland;

(c)    Phillip Bryant;

(d)    Tristan Garathe;

(e)    Philip Anthony Feitelson;

(f)    Lois May Bullen; and

(g)    Glen Walter Williams.

DISCRETION UNDER s 596B

399    The HWLE Parties submitted that on a proper consideration of the Plaintiff’s material, the discretion under s 596B was not enlivened.

400    Although it is not necessary to consider this, because of the findings I have made above, as the Plaintiff also submitted that I should consider the matter de novo on the basis of all of the material before the Court, I will do so, in this context.

401    The HWLE Parties submitted that Mr Garland, Mr Haley and Mr Bryant were directors at the time of the applications, in fact ceasing several years beforehand. Originally, this submission also included Mr van Staden, but as observed, his position has changed. Mr Garthe is in a similar position. The end of those directorships can be described as follows:

402    As explained at [90] above, to satisfy s 596B(1)(b)(ii), it is not necessary to establish that the proposed examinee will be able to give information. It is a consideration of the likelihood of the proposed examinee being able to give information about the examinable affairs of the corporation. That would also include a consideration of whether or not something is within the examinable affairs: Last Lap at [14].

403    As time passes the likelihood that a person who once had dealings, involvement or was a director of a company, still being likely to be able to give information about the examinable affairs of the corporation would diminish. Further, other intervening circumstances may also mean that such a persons are unable to give information about the examinable affairs of a corporation. Of course, it is not possible or appropriate to try and catalogue all of the circumstances where that might occur. However, it is apparent that the HWLE Parties were relying on the following events, both in relation to their character and timing, together then with the timing of the cessations of the directorships, to submit that it was not likely that such persons would be able to give information of the examinable affairs of the corporations. Those events and dates were as follows:

(a)    on 10 June 2020, Moreton Resources and MRV were placed into voluntary administration;

(b)    on 19 June 2020, Mr Elks commenced proceedings against Mr Bryant, Mr Haley, Mr Penning, Mr Garthe and Mr Garland for breach of director’s duties, or breaches of the Act or breaches of the ASX listing rules (BS6596/20);

(c)    on 15 July 2020, Moreton Resources and MRV went into liquidation;

(d)    on 11 September 2020, Boddice J struck-out the claim and statement of claim in BS6596/20;

(e)    on 25 September 2020, Receivers were appointed to MRV;

(f)    on 13 November 2020, the 2020 Judgment was delivered by Flanagan J;

(g)    on 3 March 2021, the Mine Sale Agreement was entered by MRV and the Receiver and the Buyer;

(h)    on 3 May 2022, Administrators were appointed to Moreton Resources by the Liquidators;

(i)    on 25 May 2022, Receivers were appointed to Moreton Resources;

(j)    on 7 June 2022, the Plaintiff was appointed a director of Moreton Resources and MRV;

(k)    on 8 June 2022, Moreton Resources and MRV (amongst others) entered into the DOCA;

(l)    on 21 September 2022, Wilson J granted leave for the Deed Administrators to transfer all shares from Moreton Resources to MRL Moreton, in accordance with the DOCA;

(m)    on 2 December 2022, Burns J terminated the winding up and declared that the DOCA had been wholly effectuated and its terms fulfilled; and

(n)    on 14 July 2023, the 2023 Judgment was delivered by Cooper J.

404    Given the abovementioned complication regarding Mr van Staden’s position, I will not consider his position further, until hearing further from the parties and Mr Elks.

405    Mr Bryant and Mr Garthe for Moreton Resources and Mr Bryant for MRV ceased being directors in and around March to May 2020, a month or so prior to the Companies being placed into voluntary administration. However, the definition of examinable affairs is broad. It includes matters such as “formation” and “promotion”, which would indicate that the examinable affairs are not limited to the current status or transactions undertaken by the corporation, but also includes historical affairs. Further, the matters incorporated from s 53 are also broad. As such I do not accept that Mr Bryant and Mr Garthe did not satisfy s 596B(1)(b)(ii), such that the discretion was not enlivened, as they may (in terms of it being likely) be able to give information about the examinable affairs of the corporation.

406    However, as an exercise of discretion, given the above list of events and circumstances which have taken place, together with all of the circumstances considered in this judgment, particularly the circumstances of liquidation, receivership and the DOCA, all of which occurred after they ceased to be director, it is difficult to understand what practical utility (Kimberley Diamonds at [24]) could be achieved by examining Mr Bryant and Mr Garthe in relation to Moreton Resources and Mr Bryant in relation to MRV. Further, it is also difficult to understand how such examinations could be sufficiently justified, that is by having good cause or reason, when at least all of the above matters have occurred after Mr Bryant and Mr Garthe ceased to be directors. This is particularly so with consideration of the 2020 Judgment and the 2023 Judgment and the matters determined in those judgments. To this can be added that the Plaintiff was appointed a director on 7 June 2022 and that it is apparent she does have significant material available to her.

407    Mr Garland, Mr Haley and Mr Garthe ceased to be directors (as outlined in the above table) on or about 7 June 2022, being the day the Plaintiff was appointed a director of the Companies. Again, the definition of examinable affairs is broad. It is likely that in all of the circumstances that they may be able to give information about the examinable affairs of the corporation. However, it is again difficult to understand how such examinations could be of practical utility (that is be useful) or sufficiently justified, that is by having good cause or reason, when consideration is given to the relevant circumstances and events. This is particularly so with consideration of the 2020 Judgment and the 2023 Judgment and the matters determined in those judgments. To this can be added that the Plaintiff was appointed a director on 7 June 2022 and that it is apparent she does have significant material available to her.

408    In this regard, I have also considered the matters outlined in the Fourth Plaintiff Affidavit, particularly at [24] and [26]. Those matters include events and circumstances which have been determined in the 2020 Judgment and the 2023 Judgment or they concern events or transactions which did not transpire or could only be of historical interest, given the subsequent events and circumstances (particularly the external administrations) which have occurred.

409    As such, I would exercise my discretion to decline the examination summons under s 596B against Mr Bryant, Mr Garthe, Mr Garland and Mr Haley.

410    The CBP Parties, in so far as s 596B would apply to them, being Mr Feitelson, Mr Williams and Ms Bullen, also adopt and rely on this submission by the HWLE Parties.

411    Mr Feitelson was also a former director of Moreton Resources between 26 August 2016 and 5 November 2018. He was also the director of Melgear, who was appointed as the successor Security Trustee of the Moreton Security Trust on 16 October 2020. Mr Williams is a solicitor with CBP. Ms Bullen was a solicitor with CBP, now a barrister.

412    Mr Feitelson may be able to give information regarding the broad examinable affairs of Moreton Resources given his involvement, not as a director but continued through with Melgear, and the appointment of Receivers on 25 May 2022. However, that position would be more removed than that of a director. However, it is likely given the broad definition of examinable affairs, particularly considered with s 53 of the Act, that Mr Feitelson may be able to give information about the examinable affairs of Moreton Resources.

413    All of the circumstances and events which have taken place, more than two years after Mr Feitelson ceased being a director and the multiple different circumstances of external administration, all of which occurred more than two years after he ceased to be director, must be taken into account in weighing the discretion. In these circumstances, it is difficult to understand what practical utility (Kimberley Diamonds at [24]) could be achieved by examining Mr Feitelson. Further, it is also difficult to understand how such examinations could be sufficiently justified, that is by having good cause or reason, all of the above matters have occurred after Mr Feitelson ceased to be a director. This is particularly so with consideration of the 2020 Judgment and the 2023 Judgment and the matters determined in those judgments. To this can be added that the Plaintiff was appointed a director on 7 June 2022 and that it is apparent she does have significant material available to her. I would exercise my discretion to decline the examination summons under s 596B against Mr Feitelson.

414    Whether Mr Williams and Ms Bullen are likely to have information about the examinable affairs is more difficult to ascertain. Each at the time were solicitors. Mr Williams gives evidence that he and Ms Bullen (as an employee of CBP) have acted for the Receivers, in their capacity as receivers of Moreton Resources and MRV, Melgear, Mr Feitelson and A & J (in its capacity as debenture holder of the trust). It is also apparent the CBP has acted for some of the former directors as well (in BS6596/20). In acting for the Receivers in their capacity as receiver of Moreton Resources and MRV, it is possible that they may have information about the examinable affairs of the corporation.

415    However, it is again difficult to understand how such examinations could be of practical utility (that is be useful) or sufficiently justified, that is by having good cause or reason, as against Mr Williams and Ms Bullen, when consideration is given to the relevant circumstances and events. There may be some difference in the information each of Mr Williams and Ms Bullen may be able to give, given their different positions. However, the Plaintiff did not seek to distinguish between them. Mr Williams gives evidence that Ms Bullen worked under his supervision and at his direction. Mr Williams was not required for cross-examination. Given the history of these Companies as outlined, particularly with consideration of the 2020 Judgment and the 2023 Judgment and the matters determined in those judgments, the proposed examinations are not sufficiently justified. To this can be added that the Plaintiff was appointed a director on 7 June 2022 of both Companies and that it is apparent she does have significant material available to her. In this regard, I have also considered the matters outlined in the Fourth Plaintiff Affidavit, particularly at [24] and [26]. Those matters include events and circumstances which have been determined in the 2020 Judgment and the 2023 Judgment or they concern events or transactions which did not transpire or could only be of historical interest, given the subsequent events and circumstances (particularly the external administrations) which have occurred. None of which changes my view that the proposed examinations as against Mr Williams and Ms Bullen are not sufficiently justified. I would exercise my discretion to decline the examination summons under s 596B against Mr Williams and Ms Bullen.

ABUSE OF PROCESS

416    All of the examinees submitted that in so far as it is found that there is a material non-disclosure, that is an abuse of process. The Plaintiff submitted that any alleged material non-disclosure was not relevant to the summons issued under s 596A.

417    The onus to satisfy the Court that it would be an abuse of process for the examinations to be permitted to continue rests on the Examinees and it is a “heavy one”: Williams at 529.

418    Chief Justice Kiefel and Bell and Keane JJ in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] described the position as follows:

1    This appeal is concerned with the power to permanently stay proceedings as an abuse of the process of the court. The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. The issue in this appeal is whether one or both of those conditions is met in circumstances in which the factual merits of the underlying claim have not been determined and any delay in prosecuting the claim has not made its fair trial impossible.

(footnotes omitted)

419    As was described by Gageler J in Walton at [93]:

93    “The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed.” That said, abuses of process “usually fall into one of three categories: (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”. Those categories can overlap in practice…

(footnotes omitted)

420    Justices Edelman and Stewart described it thus at [130] in Walton:

Abuse of process

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.

(footnotes omitted)

421    Also, see Kimberley Diamonds at [30]-[33]. The categories which might amount to an abuse of process are not closed, but it is to be exercised as and when justice demands. However, the power to permanently stay proceedings on the ground that they are an abuse of process must be exercised with caution and only in the most exceptional or extreme case. The setting aside of a summons on the grounds that it is an abuse of process should be a measure of “last resort” and only for the most exceptional or extreme case: Walton at [191]; Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53 at [248] (Edelman J).

422    The integrity of the examination should be capable of being maintained through the Court’s ability of making of appropriate directions and by controlling what questions might be asked: Walton at [191]. The Court controls the conduct of the examination: Palmer at [16]. The Court has an important role in supervising the examination under s 596F and s 597 to ensure the examination is not made an instrument of oppression, injustice or needless injury to the individual: Palmer at [98]; Rees v Kratzmann (1965) 114 CLR 63; [1965] HCA 49 at 66 (Barwick CJ). Section 596F and s 597(5B) provide a range of directions that the Court may utilise during the examination process.

423    It is worth setting out those provisions in this context:

596F    Court may give directions about examination

(1)    Subject to section 597, the Court may at any time give one or more of the following:

(a)     a direction about the matters to be inquired into at an examination;

(b)    a direction about the procedure to be followed at an examination;

(c)     a direction about who may be present at an examination while it is being held in private;

(d)     a direction that a person be excluded from an examination, even while it is being held in public;

(e)     a direction about access to records of the examination;

(f)     a direction prohibiting publication or communication of information about the examination (including questions asked, and answers given, at the examination);

(g)     a direction that a document that relates to the examination and was created at the examination be destroyed.

(2)     The Court may give a direction under paragraph (1)(e), (f) or (g) in relation to all or part of an examination even if the examination, or that part, was held in public.

(3)    A person must not contravene a direction under subsection (1).

597    Conduct of examination

(5B)    The Court may put, or allow to be put, to a person being examined such questions about the corporation or any of its examinable affairs as the Court thinks appropriate.

424    The Examinees raise issues under each of the three generally accepted categories and the arguments overlap. In summary those bases are as follows.

425    The bases advanced under this category of illegitimate purpose are:

(a)    seeking to investigate issues that have already been decided or which do not warrant scrutiny; and

(b)    the dominant purpose of the examinations are to cause serious trouble for and inconvenience to, Mr van Staden, the CBP Parties and the other examinees.

426    The bases advanced under this category of unjustifiably oppressive are:

(a)    the Plaintiff proposes to conduct the examinations herself and it is alleged she is not a fit and proper person to carry out the examinations;

(b)    the examination summons were obtained in circumstances of material non-disclosure; and

(c)    the dominant purpose of the examinations are to cause serious trouble for and inconvenience to, Mr van Staden, the CBP Parties and the other examinees

427    The bases advanced under this category of bringing the administration of justice into disrepute are:

(a)    the examination summons were obtained in circumstances of material non-disclosure; and

(b)    the Plaintiff proposes to conduct the examinations herself and it is alleged she is not a fit and proper person to carry out the examinations.

428    Given the overlap in the matters advanced, it is convenient to deal with them by topic and consider whether such matters constitute an abuse of process, on the basis of the category alleged.

Material Non-Disclosure

429    The Examinees have alleged several bases for which they contend that the Plaintiff failed to comply with her duty of disclosure. These are considered in detail from [160]-[394] above. I have accepted several aspects of material non-disclosure as would relate to the s 596B summonses.

430    Chief Justice French in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7, in the context of describing (at [39]-[42]) the essential character of superior courts of record which necessarily involve power to maintain its authority and to prevent it processes being obstructed or abused at [43], stated (with reference to Edison):

43    The inherent powers relevant to these proceedings include the power of the Supreme Court to prevent abuse of its processes by revoking an ex parte order against a party when the party seeking the order has failed to discharge its obligation of full disclosure.

(footnote omitted)

431    To a similar effect are those of Gageler J at [185]-[188] in Condon that unfairness in Court procedure saps confidence in the judicial process and undermines the integrity of the Court as an institution that exists for the administration of justice. Such statements of principle would have application in circumstances where an order was obtained on an ex parte application but there was a failure to comply with the duty of full and frank disclosure to the Court. Being ex parte, the party against whom an order is made is not afforded the opportunity to be heard. Although there can be circumstances where such an order is appropriate, the heavy obligation on the party is to comply with their duty of disclosure and bring forward to the Court all of the material facts which that the other person would presumably have brought forward in opposition to that application. Failure to comply with this duty, where an order is made, brings the administration of justice into disrepute. That amounts to an abuse of process.

432    If necessary, I would also have set aside or permanently stayed the s 596B examination summons issued, on this basis. The material non-disclosure by the Plaintiff on the ex parte application brings the administration of justice into disrepute and is an abuse of process.

433    However, as explained above, given the different statutory requirements of s 596A, the duty of disclosure on such an application is different. I have not accepted that there has been any material non-disclosure on the s 596A orders and as such, there is no abuse of process, in this regard.

434    The CBP Parties did submit that if any of the examination summons were found to be an abuse of process that would infect all of the summons, such that there is no neat differentiation to be drawn between the examinees. The submission was that it does not matter whether the summons were made under s 596A or s 596B, if an abuse of process is found, then all of the summons must be set aside. I do not accept that submission. The requirements for a s 596A summons and a s 596B summons are different. Each must be considered on its own terms. The Plaintiff could have bought each application separately, however bringing them together does not change the requirements that need to be meet for a mandatory summons or a discretionary summons.

435    On either basis advanced, there is no abuse of process in relation to the mandatory examinations because of material non-disclosure. There has been no material non-disclosure in relation to the s 596A summons.

The “Suitability Issues”

436    The CBP Parties advance a submission that the Plaintiff is not a fit and proper person to conduct the examination summons. During the course of this matter this became known as the “suitability issues”. The matters relied upon to support this submission were as follows, being the Plaintiff’s:

(a)    complaint to the LSC about Mr van Staden on 17 June 2022. This was dismissed on 4 April 2024 on the basis that there was no reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct by a professional disciplinary body;

(b)    allegations contained within the application to the Takeovers Panel dated 4 July 2022. This was dismissed on 12 July 2022 (being the TP Decision);

(c)    complaint to the LSC about Mr Williams on 12 September 2022. This was dismissed on 4 April 2024 on the basis that there was no reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct by a professional disciplinary body;

(d)    conduct before the Registrar, intentionally withholding material facts;

(e)    admission to the legal profession by failing to disclose a suitability matter, that she made serious allegations of professional misconduct against Mr van Staden and Mr Williams which was not disclosed to the Supreme Court of Queensland and she knew, but failed to disclose these matters.

437    The CBP Parties accept that the finding sought that the Plaintiff is not a fit and proper person, is a grave one. The submission was that the Plaintiff was not a fit and proper person to be able to undertake the proposed examinations and that permitting her to do so would be unjustifiably oppressive and bring the administration of justice into disrepute. Although this submission of the CBP Parties focused on the position of Mr Williams, it was not limited to only his position. Given the finding above, it is unnecessary to this submission in the context of any of the s 596B summons, it will only be considered in relation to the mandatory examination summons. The JWS Parties do not adopt this submissions. As such it is only relevant to Mr Kirk and Mr Joiner.

438    The Plaintiff submits that there is no requirement in the statutory language which requires a person who is going to conduct the examinations to be a fit and proper person. It is not an additional element or criteria for the issue of either a mandatory or discretion summons. The Plaintiff also submits that this is to effectively pre-empt the examinations.

439    In this regard, the observations of Edleman and Stewart JJ in Walton at [173] are relevant as the Plaintiff is an eligible applicant having been authorised by ASIC. It is not to be assumed or expected that ASIC might authorise a person to make illegitimate, vexatious or oppressive examinations of a company officer. The application or material which the Plaintiff submitted to ASIC so that she would be designated an “eligible applicant” was not before the Court.

440    The Plaintiff accepted in her evidence that the allegations made to the LSC were serious. There is no doubt that the allegations were serious. It can be accepted that on the basis of the material before this Court, the Plaintiff has, at times, been quick to make serious allegations. The Plaintiff withdrew one submission regarding the LSC’s response but sought to maintain a submission that nowhere in the responses from the LSC do they say that the complaints lacked merit or were baseless. I do not accept that submission. As outlined above, the LSC found that there was “no reasonable likelihood” of a finding of unsatisfactory professional conduct or professional misconduct. Further, in relation to one of the issues raised against Mr Williams, the LSC found there was “no evidence” to support the allegation. Based on the findings of the LSC, the complaints lacked merit and were baseless.

441    However, it is not the function of this Court on this application to set aside or discharge examination summons to make a finding that the Plaintiff was or was not a fit and proper person. This should not be taken as any kind of endorsement of the Plaintiff’s actions, allegations or complaints. It is simply a function of this kind of application.

442    The examinations are within the control of the Court. The Court may give directions about the examinations in accordance with s 596F and s 597(5B) of the Act. Without being exhaustive, should the Plaintiff ask inappropriate questions, the Court can disallow a question, or the topics or matters to be inquired into at the examination, can be the subject of directions. As such, these concerns of the CBP Parties can be properly and appropriately managed by the Court during the examination process: Walton at [191].

Serious Trouble and Inconvenience

443    The CBP Parties submit that it is apparent that one of the purposes of the examinations is to re-open matters which have already been determined. I have considered this as part of the next issue.

444    The CBP Parties submit that the Plaintiff has other information available to her and she is only seeking to cause trouble and inconvenience. It is apparent that despite the 2020 Judgment, the 2023 Judgment and other decisions of other relevant bodies, the Plaintiff does not accept those outcomes. This is apparent by her answer that the 2023 Judgment raises further questions.

445    However, given the reasons above, this is only to be considered in relation to the s 596A examinees. The CBP Parties focused (although not exclusively) on the position of Mr Williams. However, that examination summons will be set aside.

446    I am unpersuaded to take the step of “last resort” on this basis, and set aside the remining s 596A examinations as an abuse of process, because of serious trouble and inconvenience.

447    As already observed, the Court remains in control of the process and conduct of the examinations.

Investigate Issues already Decided

448    The CBP Parties identify the following matters which they submit have already been decided and do not warrant scrutiny:

(a)    the February 2020 Agreement;

(b)    the appointment of Melgear as security trustee;

(c)    Mr Kirk’s sale of property owned by MRV;

(d)    the controversy about the power of Moreton’s directors;

(e)    whether Mr Kirk has behaved unethically;

(f)    to “fish” for information to support the allegations regarding Mr van Staden and Mr Williams; and

(g)    to investigate the matters the subject of the application to the Takeovers Panel.

449    To this can also be added the suggested investigations regarding the registration of certain security interests on 10 October 2019. The First Samuel Security Interest was registered on 10 October 2019 and was part of the Secured Debenture Deed which Moreton Resources entered with First Samuel. Moreton Resources entered into the Security Trust Deed with First Samuel as Security Trustee and MRV as guarantor. Flanagan J in the 2020 Judgment construed the terms of the Secured Debenture Deed and the Security Trust Deed, which included the events of default (as defined). Relevantly, Flanagan J held that Mr Feitelson as the Majority Beneficiary instructed First Samuel as Security Trustee to appoint receivers and he was entitled to do so (2020 Judgment at [106]). This was relevant to the declaration sought that the appointment of the receivers (Mr Kirk and Mr Joiner) to the property of MRV was invalid. That relief was refused.

450    It is worth adding to this issue as the Plaintiff identified a potential limitation period for a matter to be investigated as being 10 October 2019, being the date when the security interest in favour of First Samuel as security trustee was registered on the PPSR security was registered. This matter has been determined by the 2020 Judgment and does not warrant further investigation.

451    The February 2020 Agreement was the subject of consideration and determination by Cooper J in the 2023 Judgment (at [9] and [11(b)] and [87]-[118]). This matter has been determined by the 2023 Judgment and does not warrant further investigation.

452    The appointment of Melgear as security trustee was the subject of consideration and determination by Cooper J in the 2023 Judgment (at [7(b)] and [10] and [123]-[160]). This matter has been determined by the 2023 Judgment and does not warrant further investigation.

453    In relation to the Receiver’s sale, by Mr Kirk of property owned by MRV, being by way of the Mine Sale Agreement for $6,500,000 in circumstances where the liquidators (although not permitted) were going to complete a sale of those assets for $500,000, might be difficult to understand, the CBP Parties did not identify where this issue has been previously considered and determined.

454    As to the controversy regarding the directors’ power, an examination under s 596A may ultimately confer no benefit on a company, its creditor or its contributories. Enforcement of the law serves the public interest and is a legitimate purpose for the purposes of s 596A: Walton at [172].

455    Whether Mr Kirk has behaved unethically. The CBP Parties submitted that Mr Elks had made a complaint to ASIC about Mr Kirk and that no action has so far been taken by ASIC. That is, this issue has not been previously considered or determined. The examination process is essentially an information gathering exercise, but it is one controlled by the Court. The Plaintiff will not be permitted during that examination to ask scandalous questions.

456    In relation to the allegations concerning Mr Williams and Mr van Staden, the examination must concern the examinable affairs of the corporation and although that is a broad concept it is not unconfined. Furthermore, in so far as the Plaintiff may seek to ask questions relating to the matters the subject of the previous LSC complaints, those matters have been dealt with.

457    Finally, as to the allegations made in the application to the Takeover Panel. Again, that matter has been considered and determined.

458    The Plaintiff submits that she is not seeking to re-open matters that have already been decided by Cooper J. The Plaintiff does not expressly submit this in relation to other matters raised. As already observed, it is difficult to reconcile this submission with the position that the judgment by Cooper J raises further questions.

459    However, on this and to avoid the examination being an instrument of oppression or injustice, I will make a direction pursuant to s 596F(1)(a), that (the Registrar may need to make other directions, to ensure control over the process, during the course of the examinations):

The matters to be inquired on the examinations of Mr Kirk, Mr Joiner, Mr Orr and Mr Sparks will not include any matter considered and determined in the 2020 Judgment or the 2023 Judgment.

CONCLUSION – Abuse of Process

460    If it was necessary, I would have found that the s 596B examination summonses were an abuse of process due to the Plaintiff’s material non-disclosure on the ex parte applications. Such conduct brings the administration of justice into disrepute.

461    However, in relation to s 596A examination summonses I am not satisfied that the mandatory examinations are an abuse of process. In essence, these examinations are an information gathering process, but subject to the control of the Court. Further, I will make a direction regarding certain matters which will not be able to be the subject of the examinations. Of course, it may be necessary for the Registrar during the examination to make further directions. That will be considered during the examinations.

ORDERS FOR PRODUCTION

Relevant principles

462    Although there is no express power to set aside an order for production, s 35A(5) of the FCA Act would necessarily provide the Court with power, where the order is made by a Registrar: Cathro at [26]; Giraud at [30]-[31].

463    The orders for production were made by the Registrar under r 30.34 and not expressly under s 597(9) I gratefully adopt the principles distilled by Derrington J in Giraud at [33]-[35], as follows:

The relevance of Pt 5.9 to the application of r 30.34

33     Although, in substance, the issuing of the Direction was authorised by r 30.34 of the Federal Court Rules and not s 597(9) of the Corporations Act, the principles relating to the issuing of summons under Part 5.9 of that Act remain relevant. That is because the legal limits of the power in r 30.34 are ascertained “by asking whether a person acting judicially could reasonably be of the view that production of the document or thing described in the order was required for the purpose of examining a person within the bounds of s 597 and the internal limitation in the examination orders”: Re BPTC Ltd (in liq) (No 5) (1993) 10 ACSR 756 at 763 per Bryson J; Re Southland Coal Pty Ltd (recs and mngrs appt) (in liq) (2006) 58 ACSR 113 (Re Southland Coal). From his Honour’s consideration of the interrelationship between the Court’s power under the rules to require production of documents and the power to summons persons for examination, Gleeson J in Cathro v Golman identified the following guiding principles which may be applicable on any application for the production of documents in aid of a public examination:

(1)     the power is to be exercised “where the production of documents is required for the exercise of the power to conduct an examination”;

(2)     the power to compel production is a wide one and, while there is a need for wide powers, there is also a need to avoid oppressive operation;

(3)     there must be a connection between the order for production of documents and the purpose of the examination under the relevant section of the Act; and

(4)     the production of documents is ancillary to the process of examination.

34     Relevant to the exercise of power in this case are the observations of Davies J in Re Bill Express Ltd (in liq) (2010) 238 FLR 329 (Re Bill Express) [26] where her Honour said in relation to the power to make an order under s 596D of the Corporations Act:

An examination may be confined by the order of the Court to particular matters and if so, the scope of documents that a court may order for production would similarly be confined. Where, as is the case here, no limitation is placed on the subject matter of the examination, other than that it must be about a corporation’s examinable affairs, an order for production in terms that the examinee must produce all books and records relating to the affairs of a corporation is within the power of the Court. They are separate questions as to whether the purpose for which the examination has been sought is a proper and permissible purpose or whether the order may operate oppressively in relation to the person summonsed.

35     These principles also apply when the court is exercising its power under r 30.34.

(Footnotes omitted)

Section 596B examinees

464    In relation to the s 596B examinees, as I will set aside the summons issued to those examinees, the orders for production must necessarily also be set aside. The documents cannot be required for the exercise of the power to conduct the examination, as the examination will not be proceeding.

465    As such, I am satisfied that the orders for production to the following person should be set aside:

(a)    John Kevin Haley;

(b)    Brett Garland;

(c)    Phillip Bryant;

(d)    Tristan Garathe;

(e)    Philip Anthony Feitelson;

(f)    Lois May Bullen; and

(g)    Glen Walter Williams.

466    The orders for production to the proper officer of CBP must necessarily relate to the examinations of either or both Mr Williams and Ms Bullen. These must be set aside as well, as the documents cannot be required for the exercise of the power to conduct the examination.

467    The orders for production to the proper officer of Melgear must necessarily relate to the examinations of Mr Feitelson. The Plaintiff did not submit that this order for production would be otherwise relevant to another examination. As the examination summons to Mr Feitleson will be set aside, the order for production must be set aside as well, as the documents cannot be required for the exercise of the power to conduct the examination.

Section 596A examinees

468    The JWS Parties submit that even if the examination summons remain as against Mr Orr and Mr Sparks, the Orders for production should be set aside. This is for two reasons. First, because the examination can only relate to the “examinable affairs” of the Companies, the personal documents (being in categories 1 to 10) are not relevant. Secondly, the categories of documents sought are otherwise unduly broad and vague and thereby oppressive in its terms.

469    The Plaintiff has not identified any cause of action that the Companies may have against any of the proposed examinees. The Fourth Plaintiff Affidavit states that she does “not wish to disclose the precise issues I intend to examine the applicants on”. Counsel for the Plaintiff submitted “my instructions are not to identify a particular cause of action with a particular date.”

470    Further, the Plaintiff’s evidence was as follows:

MR WACKER:     Ms Elks, as I understand the evidence you’ve given over the last two days, your position is that you’re not required, at this stage on this application or before Registrar Buckingham, to identify any courses of action that you think Moreton Resources or MRV may have against any of the proposed examinees?---That is definitely my understanding.

And that’s why you haven’t, in any of your evidence, identified any potential causes of action against any potential examinees?---That’s correct, yes.

And, rather, what you propose to do is to conduct these examinations in the hope that you may identify potential causes of action?---Correct.

471    The JWS Parties submitted that for the Personal Documents to be relevant to the examinable affairs of the Companies, it must be for the purpose of inquiring as to the worth of a potential defendant and their ability to satisfy a judgment: Cathro at [40].

472    In these circumstances, the personal documents sought against any of the s 596A examinees cannot stand. No cause of action is identified against any of these mandatory examinees. There is no need to consider whether a “possible” cause of action reaches the required threshold, none is identified. Therefore, such documents would not be relevant to examinable affairs of the Companies and could not be ancillary to the process of examination. Therefore, from the Annexure to the relevant Orders, the first 10 categories must be set aside.

473    In relation to the width of the terms of the order for production, Hammerschlag J (as his Honour then was) in In the Matter of Nielsen and Moller Autoglass (NSW) Pty Ltd (In Liq); Geoffrey James Rankine and Anor v John Frederick Lord and Anor (2008) 222 FLR 21; [2008] NSWSC 1197 observed as follows at [51]-[53]:

51    The Orders objectively construed are too wide and too uncertain to stand, irrespective of Mr Rankine's subjective or perceived lack of difficulty with them. Even less is his subjective position relevant to their purported effect beyond the powers of the liquidators.

52    The width of the statutory definition of ‘examinable affairs’ does not assist the liquidators. They have been given specific powers and functions which relate to matters which are within the examinable affairs of the Company. The fact that the statutory definition of examinable affairs is wider (as it must be) than the matters to which their specific powers and functions relate cannot expand their authority. In addition the Orders in their present form would be objectionable even if the liquidators' powers and functions were not limited and applied to the examinable affairs of the Company to their fullest extent.

53    In my view the Orders should wholly be set aside.

474    Secondly, the terms of the orders of production are submitted to be too wide, vague, and as such are oppressive in their terms. This submission was made in relation to particular paragraphs of the orders for production. The Annexure defines “Documents” and “Financial Records” as follows:

Documents     means all correspondence, minutes of meetings, memoranda, facsimiles, file notes, diary entries, emails, accounting records, financial statements, books and records, bank statements, contracts and other documents in electronic form, spreadsheets, reports and drafts and copies thereof, including sound recordings or video recordings, that are within your possession, control or custody.

Financial Records    means accounting records, accounts, ledgers, bank account details, balance sheets, creditor and debtor listings, statements of accounts, management accounts, loan account ledgers, tax returns, profit and loss statements and any other financial statements.

475    These definitions are vague, excessive and imprecise. From the definition of “Documents”, the terms “accounting records”, “books and records”, “other documents in electronic form” are not defined. These are expansive terms and would include uncertain types of documents.

476    The term “other financial statements” in “Financial Records”, is also not defined. It is not clear how that might differ from the “financial statements”, which are referred to in the definition of “Documents”. The term “accounts” is also not defined and is vague and uncertain.

477    Each of paragraphs 11 to 20 of the orders for production to the s 596A examinees commences with the words “All Documents”. The definition of “Documents” also does not allow for an exclusion or procedure to resolve issue relating to privileged communications: Giraud at [45]-[55]. Even though such a process should be understood to being subject to a claim to maintain the common law privileges which they may have, including legal professional privilege, it is how that will be protected which causes difficulty: Giruad at [48].

478    No alternative drafting of the orders for production were submitted by the Plaintiff, in an attempt to properly identify the documents sought that would be relevant to the examinations.

479    Given the definition incorporated of “Documents” and the lack of a procedure regarding privileged communications, I am satisfied that the terms of the orders for production are uncertain, vague and thereby oppressive.

480    The orders for production to Mr Orr, Mr Sparks, Mr Kirk and Mr Joiner will be set aside on this basis.

481    Further, the orders for production to each of Deloitte and Cor Cordis, also commence with “All Documents” and use the same definition of “Documents”. Given the definition incorporated of “Documents”, I am satisfied that the terms of the orders for production are uncertain, vague and thereby oppressive. The orders for production to Deloitte and Cor Cordis will be set aside.

482    However, for the examinations under s 596A, there may be a need for certain relevant documents. As such I will hear further from the parties as to an appropriate form of orders for production in relation Mr Orr, Mr Sparks, Mr Kirk, Mr Joiner and the proper officer of Deloitte and Cor Codis.

CONCLUSION

483    For all of the above reasons:

(1)    All of the s 596B examination summonses (except for Mr van Staden) will be set aside.

(2)    All of the orders for production will be set aside.

484    The mandatory examination summons will remain and I will hear further from the parties in relation to orders for production, in this regard.

485    On a consideration of all of the material now before the Court, I would exercise my discretion not to issue any of the s 596B examination summons as sought by the Plaintiff.

486    There are further matters to be considered, in relation to various costs applications (including the costs of these applications), the position of Mr van Staden and any orders for production in relation to the s 596A examinations. As such, the matter will be listed for case management on a date to be fixed, in consultation with the parties.

Associate:    

Dated:    22 December 2025