Federal Court of Australia

Crane v Gidley (Liquidator), in the matter of Steel City Formwork Pty Ltd (in liq) [2026] FCA 770

ORDERS

THE COURT ORDERS THAT:

1.    The time limited by r 35.13 of the Federal Court Rules 2011 (Cth) for filing an application for leave to appeal the decision of the primary judge dated 3 July 2025 be extended to the day after the filing of the applicant’s application for an extension of time and leave to appeal.

2.    The applicant be granted leave to appeal the decision of the primary judge dated 3 July 2025 on Ground 1 and Ground 2 of the applicant’s draft notice of appeal lodged on 21 July 2025.

3.    Leave to appeal the decision of the primary judge dated 3 July 2025 on Ground 3 of the applicant’s draft notice of appeal lodged on 21 July 2025 is refused.

4.    The costs of the application for leave to appeal be costs in the appeal.

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

REASONS FOR JUDGMENT

MEAGHER J

Background

1    This is an application for an extension of time and leave to appeal (Application) from the decision of the primary judge in Gidley, in the matter of Steel City Formwork (in liquidation) [2025] FCA 739 (Primary Judgment). The background to the Application is set out at [1] – [6] of the Primary Judgment.

2    On 26 November 2024, a Registrar of the Court made, inter alia, ex parte orders for production of documents by the applicant pursuant to r 30.34 of the Federal Court Rules 2011 (Cth) in the context of an examination summons issued under s 596B of the Corporations Act 2001 (Cth), as sought in an originating process filed by the first and second respondent (together, the respondent), in the capacity as liquidator of Steel City Formwork Pty Ltd and Newcastle Formwork Pty Ltd (Companies in Liquidation) on 18 November 2024.

3    Sections 596A, 596B, 596C and 596D of the Act are 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.

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.

596C Affidavit in support of application under section 596B

(1)     A person who applies under section 596B must file an affidavit that supports the application and complies with the rules of court.

(2)     The affidavit is not available for inspection except so far as the Court orders.

596D Content of summons

(1)     A summons to a person under section 596A or 596B is to require the person to attend before the Court:

(a)     at a specified place and at a specified time on a specified day, being a place, time and day that are reasonable in the circumstances; and

(b)     to be examined on oath or affirmation about the corporation’s examinable affairs.

(2)     A summons to a person under section 596A or 596B may require the person to produce at the examination specified books that:

(a)     are in the person’s possession; and

(b)     relate to the corporation or to any of its examinable affairs.

(3)     A summons under section 596A is to require under subsection (2) of this section the production of such of the books requested in the application for the summons as the summons may so require.

4    The expression “examinable affairs” is defined in ss 9 and 53 of the Act as follows:

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.

(Original emphasis.)

53 Meaning of affairs—body corporate other than a CCIV

For the purposes of the definition of examinable affairs in section 9, section 53AA, 232, 233 or 234, paragraph 461(1)(e), section 487, subsection 1307(1) or section 1309, or of a prescribed provision of this Act, the affairs of a body corporate (other than a CCIV) include:

(a)     the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body; and

(b)     in the case of a body corporate (not being a licensed trustee company or the Public Trustee of a State or Territory) that is a trustee (but without limiting the generality of paragraph (a))—matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust; and

(c)     the internal management and proceedings of the body; and

(d)     any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property, at a time when:

(i)     a receiver, or a receiver and manager, is in possession of, or has control over, property of the body; or

(ii)     the body is under administration; or

(iia) a deed of company arrangement executed by the body has not yet terminated; or

(iib) the body is under restructuring; or

(iic) a restructuring plan made by the body has not yet terminated; or

(iii)     a compromise or arrangement made between the body and any other person or persons is being administered; or

(iv)     the body is being wound up;

and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of an administrator of the body, of an administrator of such a deed of company arrangement, of a restructuring practitioner for the body, of a restructuring practitioner for such a restructuring plan, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the body; and

(e)     the ownership of shares in, debentures of, and interests in a managed investment scheme made available by, the body; and

(f)     the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the body or to dispose of, or to exercise control over the disposal of, such shares; and

(g)     matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the body or are or have been able to control or materially to influence the policy of the body; and

(h)     the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or interests in a managed investment scheme made available by, the body; and

(j)     where the body has made available interests in a managed investment scheme—any matters concerning the financial or business undertaking, scheme, common enterprise or investment contract to which the interests relate; and

(k)     matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, any matters referred to in a preceding paragraph.

(Original emphasis.)

5    By an interlocutory process filed on 16 April 2025, and amended on 1 July 2025 (Interlocutory Process), the applicant applied, pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to, inter alia, set aside orders (Document Production Orders) that the applicant produce the following categories of documents (Documents):

…

3.     Copies of your income tax returns and income tax assessments for the financial years ending 30 June 2015 to date.

…

6.     Copies of all bank statements in respect of any current bank loans made to you solely or jointly with another person.

7.     Copies of bank statements for any other bank account of yours held solely or jointly with another person from 23 December 2015 to date.

6    The applicant did not seek that the respondent’s confidential affidavit (Confidential Affidavit) filed under s 596C of the Act be disclosed for the purpose of the Interlocutory Process.

7    It is worth noting that the respondent indicated in his submissions before the primary judge that he would press for the production of the Documents with timeframes modified as follows:

…

3.     Copies of your income tax returns and income tax assessments for the financial years ending [30 June 2020] to date.

…

6.     Copies of all bank statements in respect of any current bank loans made to you solely or jointly with another person [in the period 1 July 2020 to date].

7.     Copies of bank statements for any other bank account of yours held solely or jointly with another person from [1 July 2020] to date.

8    The respondent also did not press for the production of other documents referred to in the Registrar’s Orders of 26 November 2024, which were not the subject of argument before me.

9    On 3 July 2025, the primary judge dismissed the Interlocutory Process save that her Honour granted leave to extend the time for filing the Interlocutory Process: Primary Judgment at [27] – [28]. At [22] – [26], the primary judge gave four main reasons for refusing to exercise her discretion to set aside the Document Production Orders, as follows:

(1)    First, in reliance on Cathro, in the matter of Lidcombe Plastering Services Pty Ltd (in liq) [2018] FCA 1138 at [25], that it is within the Court’s power to order, in advance of an examination, the production of the examinee’s tax returns, notices of assessment and bank statements where the documents are sought over the entire period of the company’s existence, even where the examinee is not a director of the company: Primary Judgment at [23].

(2)    Second, that there is evidence of a relationship between the applicant, as managing director of Oakdale Group Pty Ltd, and the Companies in Liquidation, prior to the liquidation. Further, in reliance on Re BPTC Ltd (in liq) (No 5) (1993) 10 ACSR 756 at 763 and 766, it cannot be said or demonstrated by the applicant that the Documents sought are not required for the applicant’s examination or are sought for a purpose of obtaining information independently of the examination, and are therefore in excess of the Registrar’s power to make the Document Production Orders: Primary Judgment at [24].

(3)    Third, the scope of the Document Production Orders is moderated by the respondent’s concession that the period of production be limited to “the last five years”: Primary Judgment at [25].

(4)    Fourth, contrary to the applicant’s submission, the Registrar’s exercise of the power to make the Document Production Orders is not oppressive. Her Honour rejects the “assumption” that there is no demonstrated connection between the applicant’s “personal affairs” (i.e., his financial accounts and statements) and the “examinable affairs” of the Companies in Liquidation. Rather, relying on Pitman v Park (Liquidator), in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887 at [48], “[t]here may be a public interest in the disclosure of information which might otherwise intrude on the private affairs of individuals”, and thus “intrusion on ‘personal affairs’ is not a sound objection to production”: Primary Judgment at [26].

10    The applicant raises the following three grounds in his Application, which are in substance the same grounds as those contained in his draft notice of appeal:

1.     Her Honour erred in failing to address adequately or at all the issue of whether the documents identified in the Order for Production made on 26 November 2024 fell within the class of documents that related to the corporations in liquidation or to their examinable affairs.

2.     Her Honour erred in finding that the applicant bore the onus of establishing that the categories of documents to be produced did not relate to the examinable affairs of the companies in liquidation.

3.     Her Honour did not afford the applicant the opportunity to address on costs of the application in circumstances where the respondent had substantially compromised and reduced the scope of the orders for production prior to the hearing of the application.

11    The applicant relies on:

(1)    An affidavit sworn by the applicant on 17 April 2025 and filed in the proceeding before the primary judge (Applicant’s First Affidavit).

(2)    An affidavit sworn by the applicant on 17 July 2025.

(3)    An affidavit sworn by Mr David Harrison on 21 July 2025 (Harrison Affidavit).

(4)    His written submissions filed on 14 November 2025.

12    The respondent neither consents to nor opposes the applicant’s application for an extension of time, but opposes the applicant’s application for leave to appeal. The respondent relies on his written submissions filed on 28 November 2025.

Principles

13    The principles relevant to whether leave to appeal should be granted are well-settled and were not in dispute. The Court must consider (1) whether the decision is attended by sufficient doubt to warrant its reconsideration on appeal; and (2) whether substantial injustice would result if leave were refused, supposing the decision were wrong. Considerations (1) and (2) above are “cumulative”, such that leave should not be granted unless each consideration is made out: Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98; 252 FCR 1 at [38] (Jagot, Yates and Murphy JJ).

14    As to (1), where the decision being challenged involves an exercise of discretion, the applicant must show an error of the type described in House v The King [1936] HCA 40; 55 CLR 499: see Melbourne City Investments at [39]. This includes that the primary judge has acted on a wrong principle, improperly taken into account extraneous matters, not taken into account a material consideration, or mistaken material facts: at 504–5 (Dixon, Evatt and McTiernan JJ). The parties accepted that the principles in House were applicable to assessing whether the primary judge’s decision was attended with sufficient doubt to warrant reconsideration on appeal.

Submissions

Application for extension of time

15    As to the application for an extension of time, the applicant relies on the procedural background to the filing of the Application deposed to in the Harrison Affidavit. The relevant facts deposed to are that:

(1)    On 17 July 2025, the date by which the application for leave to appeal was to be filed, at around 3:30pm, a paralegal employed by the applicant’s solicitor contacted the Court Registry enquiring about the filing fee payable for the application for leave to appeal, and once this information had been received, at around 4:00pm attempted to lodge the application for leave to appeal.

(2)    At around 4:30pm on 17 July 2025, when faced with difficulty accessing the Court’s online lodgment portal, the paralegal employed by the applicant’s solicitor attempted to contact the Court Registry by phone, but was unable to speak with anyone.

(3)    At around 5:00pm on 17 July 2025, now able to access the Court’s online lodgment portal, the paralegal employed by the applicant’s solicitor “continued to experience difficulties” uploading the relevant documents individually. The paralegal telephoned the after-hours Duty Registrar, and a staff member stated that she would take a message to pass on to the Duty Registrar.

(4)    At 5:56pm on 17 July 2025, the application for leave to appeal was lodged together with all the supporting documents as a single file. At 6:08pm on 17 July 2025, the applicant’s solicitor served an unsealed copy of the application for leave to appeal and supporting documents.

(5)    At 8:40am on 18 July 2025, the Court Registry informed the paralegal employed by the applicant’s solicitor that the affidavit accompanying the application for leave to appeal needed to be filed separately, and the relevant documents should be sent to the Court Registry email for internal filing, which the paralegal did that morning.

(6)    At 3:52pm on 18 July 2025, the Court Registry requested the original electronic lodgment ID number, which the applicant’s solicitor then provided. At 5:52pm that day, the Court Registry advised the applicant’s solicitor that as they were “out of time”, he would need to make an application for an extension of time.

16    The Application was lodged on 21 July 2025 and accepted for filing on 22 July 2025.

17    The applicant submits that there is no prejudice to the respondent in allowing the application for an extension of time, given that the unsealed application for leave to appeal and supporting documents were served on the respondent on 17 July 2025, such that it is appropriate for the Court to grant an extension of time. The applicant submits that the question of whether time should be extended is to be considered in light of the question of whether leave to appeal is likely to be granted.

18    As noted above, the respondent neither consents to nor opposes the applicant’s application for an extension of time.

Application for leave to appeal

Applicant’s submissions

19    The applicant submits that the “gravamen of this appeal” is the primary judge’s alleged failure to “give adequate consideration to the circumstances in which production of documents can be said to be required or ancillary to the purpose of examining an individual about the affairs of a company”.

20    In his written submissions, the applicant relies on the “guiding principles” referred to by Bryson J in BPTC at 762 – 763, which were adopted in Tolric Pty Ltd v Taylor as Liquidator of Bruck Textile Technologies Pty Ltd (in liq) [2015] FCA 1051 at [20] and Cathro at [31] as follows:

(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.

21    The applicant accepts that as he is the director of Oakdale Group, a company that “used the services of both companies in liquidation for the provision of sub-contract labour”, there is clearly “a proper basis for [the applicant] to be examined as to his knowledge of the examinable affairs of” the Companies in Liquidation (original emphasis). However, the applicant submits that the Documents relate to his “personal affairs”.

22    The applicant submits that the respondent has “not established any connection or link between production of those documents and the exercise of the power to conduct an inquiry into the examinable affairs of” the Companies in Liquidation (original emphasis). The applicant further particularises this in his oral submissions, whereby he contends that the respondent has not satisfied the test enunciated in the decisions referred to above at [20] regarding the nexus required between the Documents and the facilitation of the examination.

23    The applicant submits orally that “from the point of view of the application before [the primary judge], the only evidence” before her Honour as to the purpose of the examination was that contained in the Applicant’s First Affidavit. Relevantly, in that affidavit, the applicant identified his role as director of Oakdale Group Pty Ltd (Oakdale Group), “a building company that provides specialised concrete formwork systems for large construction projects”, and outlined his responsibility for pricing and tendering in that regard. He also deposed to Oakdale Group’s reliance on “sub-contracted labour to support its employed workforce”, such labour coming from, inter alia, the Companies in Liquidation.

24    The applicant notes further, by his oral submissions, that notwithstanding that the matter before the primary judge was a hearing de novo, the respondent “chose not to file or serve any affidavit evidence to establish a sufficient nexus between the request to produce” the Documents and the “facilitation of the examination”. The applicant submits orally that the primary judge “failed to give sufficient emphasis to the importance of establishing the nexus and … in establishing that the [Documents] were both appropriate and necessary for the purpose of facilitating that examination”. The applicant frames the core issue of “the proper exercise of the power to order production”, so defined by the primary judge at [3] of the Primary Judgment, as requiring a “sufficient nexus between the [Documents] and the purpose of the examination” to be established, contending that this did not occur before the primary judge.

25    The applicant goes on to submit orally that, at [16] – [17] of the Primary Judgment, her Honour “identifie[d] the fact that the only evidence on the application was the evidence from [the applicant]”, notwithstanding that the originating process filed by the respondent on 18 November 2024 was supported by a confidential affidavit contemplated by s 596C of the Act, but that that affidavit was “not available for consideration by the Court on the application” before the primary judge.

26    By reference to [17] – [19] of the Primary Judgment, the applicant contends that the primary judge “casts essentially an onus” on the applicant “to demonstrate that the [Documents] are in some way outside of the examination”, by holding, in her Honour’s words at [19], that the applicant had “stymie[d] the liquidator from meeting the applicant’s challenge” in that “[i]t is not evident how the liquidator is to demonstrate the purpose of the examination without revealing the contents of the confidential affidavit”. At [18] – [19] of the Primary Judgment, the primary judge considered that the applicant at the same time (1) as accepting that the respondent was under no obligation to disclose the Confidential Affidavit (2) was calling for the respondent to identify the purpose of the examination and demonstrate the nexus between that purpose and the Documents. Rather, the applicant contends that the respondent is best placed to explain this nexus.

27    In this regard, the applicant submits orally that whilst he did not seek to disturb the confidentiality of the Confidential Affidavit, it was open to the respondent to provide an affidavit contradicting the applicant’s assertion that his dealings with the Companies in Liquidation were limited to his business, rather than personal, dealings. Such an affidavit would fall “short of disclosing what might be regarded as a legitimate forensic interest in retaining the confidentiality of the” Confidential Affidavit, but which, for example, would establish “a legitimate forensic purpose in requiring the production of … personal bank records … and personal tax returns”.

28    The applicant then refers, in his oral submissions, to the primary judge’s reasons for dismissing the Interlocutory Process (above at [9]).

29    In relation to [9](1), the applicant submits that the primary judge “fail[ed] to temper” her observation regarding the Court’s power to make the Document Production Orders by “tying it back to the nexus” that the Documents “must be for a purpose ancillary to the exercise of the power to examine, and … the documents must be for the purpose of the examination”. The applicant seeks to distinguish Cathro on the basis that the relevant orders for production were made in respect of, inter alia, bank statements and tax returns of the wife of the director of a company, who apparently had no means of support, had not derived an income or worked for many years, yet owned four properties and had obtained loans from various financial institutions, which needed to be examined in the context of the company’s affairs.

30    In relation to [9](2), the applicant accepts that as an officer of Oakdale Group he had dealings with the Companies in Liquidation, but submits that this does not disclose anything more than a professional or business relationship. The applicant further submits that the primary judge, in finding that the Documents cannot be said to have no relevance to the examination, “goes one step too far” without evidence to establish the connection required between the Documents and the examination. The applicant submits that, having referred to the criteria identified by Bryson J in BPTC, the primary judge failed to apply them, and her Honour’s reasoning was “subverted” such that it gave rise to oppression by requiring the applicant to produce the Documents. The applicant also makes written submissions as to this issue, contending that compelling the production of the Documents which are not required for the examination “within the bounds set by” s 597 of the Act is “oppressive and an abuse of process”. The applicant contends that (1) the primary judge “failed to give due consideration” to this issue and to the issue of a nexus between the Documents and the inquiry into the examinable affairs of the Companies in Liquidation, and (2) the failure to do so “may give rise to a substantial injustice” if leave to appeal is not granted.

31    In relation to [9](4), the applicant accepts that his “personal” and “corporate” affairs are “not antithetical”, but submits that in order to “justify invading the personal”, the relevant nexus between the Documents and the examinable affairs of the Companies in Liquidation must be established. Accepting her Honour’s statement at [26] of the Primary Judgment that “[t]here may be a public interest in the disclosure of information which might otherwise intrude on the private affairs of individuals”, the applicant seeks to temper that statement by reference to the manner and time in which such disclosure occurs. Referring to the case of Pitman, which the primary judge relied on for the above proposition, the applicant notes that Derrington J accepted that the exercise of the discretion to issue an order for production under s 596D(2) of the Act “is also subject to the requirement that the documents of which production is required relate to the company or any of its examinable affairs”: at [54].

32    In these circumstances, the applicant submits orally that no nexus is established between the Documents and the activities or examinable affairs of the Companies in Liquidation, “within a broad reading” of either ss 9 or 53 of the Act. The applicant contends that the matters referred to by the primary judge in relation to [9](1), (2) and (4) were “impugned by consideration of extraneous matters and by [the primary judge’s] failure to adequately take into account the material consideration that was necessary to determine if [the Documents] were relevant”. In these circumstances, the applicant submits that the principles in House are engaged, such that it is appropriate to grant him an opportunity to review the primary judge’s decision.

33    In his oral submissions, the applicant particularises the “substantial injustice” referred to above as being required to produce personal financial records without any suggestion materially before the Court as to why they relate to the activities or examinable affairs of the Companies in Liquidation.

Respondent’s submissions

34    In his written submissions, the respondent focuses on the applicant’s submission, summarised above at [22], that the primary judge failed to give due consideration to (1) the respondent allegedly failing to establish a connection between the documents referred to in orders 3, 6 and 7 of the Document Production Orders, and the examinable affairs of the Companies in Liquidation; and (2) the alleged oppressive nature of production of the Documents. The respondent’s broad submission is that the primary judge did consider and address these arguments, referring the Court to [21] – [24] and [26] of the Primary Judgment.

35    In his oral submissions, the respondent refers to the “unusual” nature of the ex parte application whereby a liquidator seeks production orders, supported by a confidential affidavit filed under s 596C of the Act, and notes that the primary judge’s decision is made in the context, and with knowledge of, these unusual circumstances. The respondent draws the Court’s attention to the primary judge’s view that, by the Interlocutory Process the applicant “stymied” the respondent by requiring it to “disclose the reasons he wanted [the Documents] produced, which were intended by the legislation to remain confidential”.

36    The respondent orally contends that the primary judge’s approach was correct, relying on Wily, Re LED (South Coast) Pty Ltd [2009] NSWSC 946; 76 NSWLR 428 for the proposition that in a case such as this, an applicant “would need to demonstrate a positive case for interference with the orders” for production, because such an application “puts the liquidator in the invidious position” of disclosing, either by having the Confidential Affidavit released or by way of another affidavit, the reason for seeking the orders for production in the first place.

37    The respondent further submits orally that, contrary to the applicant’s submission, the primary judge “plainly” did consider the appropriate matters and gave reasons as to why the Documents ought to be produced. The respondent submits to the same effect with respect to the issue of whether the Document Production Orders were oppressive.

38    In relation to the applicant’s submission regarding the primary judge’s alleged failure to provide an opportunity to make submissions on costs, the respondent submits that (1) it was plain from the respondent’s submissions before the primary judge that the respondent sought his costs if successful, (2) the primary judge’s order was a “regular order” that costs follow the event, and (3) in circumstances where no application was made to vary the costs order, it cannot be attended with sufficient doubt in circumstances where the respondent was successful.

39    In relation to the issue of a substantial injustice, the respondent by his written submissions contends, referring generally to Samsung Electronics Co. Ltd v Apple Inc. [2013] FCAFC 138 and Melbourne City Investments, that even if the primary judge failed to give proper consideration to these matters, the applicant’s submission that such a failure “may”, as opposed to “would”, give rise to substantial injustice, is not sufficient for leave to appeal to be granted. Further, the respondent submits that the production of documents “spanning a limited period of time”, in circumstances where no judgment will be recorded against him, no opportunity to exercise a legal right will be lost, and compliance will neither be time-consuming nor costly, means that no substantial injustice would flow from compliance with the Document Production Orders.

Applicant’s submissions in reply

40    By his oral submissions in reply, the applicant refers to the decision of Bryson J in BPTC at 763 for the proposition that the fact that the Document Production Orders are oppressive “is of itself sufficient to establish that there is a substantial prejudice” in allowing the Document Production Orders to stand.

41    In relation to the nexus between the Documents and the activities or examinable affairs of the Companies in Liquidation, the applicant put to the Court, by way of analogy, that many large companies would have dealt with the Companies in Liquidation, including for example BHP and the companies involved in the Comalco aluminium smelter in Newcastle, and it would be inappropriate, if an order for production were made against such a company, that on that basis alone directors of those companies be required to produce their personal financial records.

42    Regarding Ground 3, which relates to costs, the applicant concedes that it is “not integral to the application for leave”, but is a ground of appeal that might be pursued if leave were granted.

43    In relation to the primary judge and the respondent’s reliance on Wily, the applicant seeks to distinguish that case on the basis that in that case, the confidential affidavit was available to the parties at the time of the hearing. As to the contention that the applicant had by the Interlocutory Process put the respondent in a position whereby he had to disclose the Confidential Affidavit, the applicant reiterates his earlier submission that the respondent at all times had the opportunity to file an affidavit “less than the [C]onfidential [A]ffidavit”, which is “not unusual in these applications”, being “probably the rule rather than the exception”. The applicant contends that it would be “very easy to establish via a simple affidavit that there is some possible nexus between that request and the examinable affairs of the companies in liquidation”.

consideration

44    It is convenient to deal with Ground 1 and Ground 2 together, since the issue of whether the primary judge adequately addressed, or addressed at all, whether the Documents related to the examinable affairs of the Companies in Liquidation, is informed by the nature of the review under s 35A(5) and (6) of the FCA Act and by the question of which party bears the onus in such a review. I interpolate here to note that much of the discussion as to the nature of review under s 35A of the FCA Act was not brought to the attention of the primary judge, nor was it broached in any detail before me.

The nature of review under s 35A of the FCA Act

45    In Pitman, Derrington J considered that the issue of the nature of a review under s 35A of the FCA Act of orders for the issuing of summonses under s 596B of the Act is “not entirely without its difficulties”: at [27]. The difficulties appear to arise out of the difference between the approach in this Court and the approach in, inter alia, the Supreme Court of New South Wales.

46    As Basten JA, with whom Ipp JA agreed, stated in Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61 at [43], “[t]he term ‘review’ may be said to have ‘a quite amorphous meaning’”. In Wily, Barrett J considered the requirements of a “review” in the Supreme Court of New South Wales in the context of an application to review examination summonses issued by a registrar under s 596B of the Act. In summarising the requirements for a review in the New South Wales Supreme Court, Barrett J, relying on the judgments of Basten JA and Hodgson JA in Tomko, considered that “a review, unlike an appeal ‘does not require’ demonstration of error and ‘is not restricted’ to reconsideration of the material before the primary decision maker” and “the court should, on a review, ‘exercise afresh’ the relevant power”: at [23]. His Honour considered that review in this context involved a “discretion whether and, if so, how to intervene”: at [24]. Thus, his Honour considered, at [26]:

[R]eview, in the relevant sense, involves discretionary intervention. The starting point for the court is therefore the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. While it is for the court to make the relevant decision afresh, it will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review.

(Emphasis added.)

47    By contrast, the approach to a review of an order of a Registrar of this Court under s 35A(5) and (6) of the FCA Act is by way of a hearing de novo. As Basten JA acknowledged in Tomko, “[i]n federal jurisdiction, a review is taken to mean a re-examination of a matter afresh, not limited to reconsideration of the material before the primary decision-maker”: at [43]. In Bechara v Bates [2021] FCAFC 34; 286 FCR 166, a Full Court of this Court comprised of Allsop CJ, Markovic and Colvin JJ at [17] explained the rationale for the nature of a review under s 35A of the FCA Act, albeit in the context of a sequestration order, as follows:

The nature of a review under s 104(3) of the [then-current Federal Circuit Court of Australia Act 1999 (Cth)] and under s 35A(6) of the [FCA Act] of an order made by a registrar (often but not always in the context of the review of the making of a sequestration order in bankruptcy) has been the subject of a significant number of decisions of this Court. All are consistent. To underpin the validity of the delegation of judicial power of the Commonwealth to a non-judicial court officer there must be a rehearing de novo before a judge of the Court (whether Circuit Court or Federal Court). The review does not hinge, or focus, upon error in the decision of the registrar. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo. The importance of the de novo rehearing is Constitutional, being the supervisory condition that enables judicial power to be delegated to a registrar. All the jurisprudence stems from this requirement marked out by the High Court in the landmark decision in 1991 of Harris v Caladine [[1991] HCA 9;] 172 CLR 84 …

(Emphasis added.)

48    In Coshott v Coshott [2016] FCA 966, Bromwich J held at [33] that the breadth of the power in s 35A(5) was an “essential precondition to the constitutional validity of the delegation of such powers to non-judicial officers in the first place”, referring to Harris v Caladine [1991] HCA 9; 172 CLR 84 at 95 – 6 (Mason CJ and Deane J), 125 – 7 (Dawson J). In this regard, “the judge conducting a de novo review exercises original and not delegated power”: Coshott at [33].

49    In Wily, Barrett J rejected a submission that the requirements of a review in this Court applied equally to a review in the New South Wales Supreme Court of a registrar’s decision to issue summonses under s 596B of the Act: at [13] – [20]. That submission was made on the basis that in reviewing the summonses, the New South Wales Supreme Court was exercising federal judicial power, attracting the requirement that the “review” be conducted as a hearing de novo: at [13] – [17]. Barrett J rejected this submission, stating that the Commonwealth law conferring jurisdiction on a State court must be taken to intend that jurisdiction “to be exercised by the State court as it in fact exists, complete with such delegations and systems of supervision of delegates and such provisions with respect to appeal and review as form part of its structure according to State law”: at [20].

50    In Re Idoport Pty Ltd (in liq) (recs apptd) [2011] NSWSC 322; 83 ACSR 164, in the context of an application to discharge examination summonses issued under s 596B, the parties accepted that the application should proceed on the basis that Barrett J’s approach in Wily as to the nature of a “review” of a decision under s 596B was correct, and Ward J proceeded on that basis without deciding the issue: at [99] – [103]. See also In the matter of Affinity Capital Pty Ltd; Indrasith v Ku [2011] NSWSC 1158; 6 BFRA 48 at [22] – [24], where Ward J considered that the correctness of the arguments summarised in Wily at [13] – [19] and Idoport at [99] – [103] was a matter for “another forum”: at [22]. In that case, the relevant defendants sought to set aside examination summonses and notices to produce served pursuant to orders made by a registrar under s 596B of the Act: at [1]. The application to set aside the production orders was made on the basis that the broad range of documents went beyond what would be reasonably necessary if the examination were for a proper purpose, and the orders were oppressive, having regard to the imprecision of the categories as framed: at [3]. Her Honour accepted that the application was “a review not a rehearing”, but that the Court could consider material other than that before the registrar: at [23]. However, referring to Lawteal Pty Ltd v Ofo [2005] NSWSC 984, her Honour noted that it had been said that “the discretion to review such additional material should be exercised ‘sparingly’ so as to facilitate the review process, not to turn it into a fresh hearing”: Affinity Capital at [23].

51    While some judges in the above-cited cases occasionally use the language of a de novo hearing, that language appears to be qualified by the requirement that the Court is nonetheless exercising a discretion to interfere with the registrar’s order, rather than making a fresh decision. For example, in Re Newheadspace Pty Ltd (in liq) [2020] NSWSC 173; 144 ACSR 224, Rees J at [65] considered that a “review is not an appeal but a hearing de novo and, on such a review, the Court must exercise its own discretion as described by Hodgson JA (with whom Ipp JA agreed) in Tomko”, referring to [7] and [9] of his Honour’s judgment. In Tomko, Hodgson JA at [7] – [9] stated as follows:

In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.

In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

(Emphasis added.)

52    The emphasised sections of the above passage suggest that the Court does not engage in a de novo hearing in the sense described at [17] in Bechara; rather, it exercises a discretion as to whether it should vary or substitute the orders under review.

53    In Pitman, in the context of an application to set aside orders made by a registrar of the Court that a summons issue requiring both the applicant to attend an examination and produce documents, Derrington J at [27] – [32] reviewed the authorities considering the nature of a review under s 35A(5) and (6) of the FCA Act. His Honour at [27] referred to the Full Court’s decision in Mazukov v University of Tasmania [2004] FCAFC 159, in which the Court held at [24] that the nature of a review under s 35A(6) of the FCA Act is a hearing de novo, for the constitutional reasons stated later by the Full Court in Bechara at [17]. While noting at [30] the contrasting approach articulated in Wily, Idoport and Accord Pacific Holdings Pty Ltd v Accord Pacific Land Pty Ltd (in liq) [2011] NSWSC 707, in the absence of a submission that the Court should depart from the approach that such a review in this Court is a hearing de novo, and given that it would not affect the outcome, Derrington J approached the matter in Pitman as such. His Honour considered that the relevant approach in that case was “for the Court to ascertain on the material before it whether it should make an order for the issuing of the summons and, if so, on what terms”: at [32].

54    Such an approach is consistent with Jagot J’s approach to a review of examination summons and orders to produce documents under ss 596B and 596D(2) of the Act by way of a hearing de novo in Re Bell Group NV (in liq) [2017] FCA 927; 122 ACSR 418 at [1], [20], as well as the approach of Anderson J in Secatore, in the matter of Last Lap Pty Ltd (in liq) (No 3) [2020] FCA 1289 at [2] – [3], [43], [48], [63] – [81] where his Honour formed a view as to whether the relevant orders satisfied the requirements of s 596B, including whether the documents sought to be produced related to the company’s examinable affairs, on a review of the evidence before him.

55    In light of the weight of authority canvassed above, I consider that a review of the Document Production Orders is by way of a hearing de novo under s 35A(5) of the FCA Act.

The onus of proof in a review under s 35A of the FCA Act

56    The position that the applicant, in an application to set aside an order of a registrar made under ss 596A or 596B of the Act, bears the onus to make out a case for intervention, appears to be well-accepted in cases decided in New South Wales: see, e.g., Re Total Entity Pty Ltd (in liq) [2003] NSWSC 924; 47 ACSR 577 at [18] (Barrett J); Wily at [24] (Barrett J); Meteyard v Love [2005] NSWCA 444; 65 NSWLR 36 at [140] – [144] (Basten JA, Beazley JA agreeing at [1], Santow JA agreeing at [12]); Tomko at [7] (Hodgson JA, Ipp JA agreeing at [17]); Newheadspace at [65] (Rees J). See also Rosenberg v Can’t Escape Karma Pty Ltd [2025] WASC 58 at [57] – [66] (Howard J).

57    This position appears to be a corollary of the position that the hearing is by way of a “review” in which that Court exercises a discretion as to whether it should intervene, rather than a true hearing de novo. For example, as noted above at [49], Barrett J in Wily rejected the submission that the requirements of a “review” in this Court applied equally to a review in the New South Wales Supreme Court. Such requirements were submitted to be that the review be “a hearing de novo and by reference to such evidence as is then put before [the Court], with the result that the burden of making a case for the issue (or, more accurately, continuation) of the examination summonses rests squarely with the liquidators”: at [17], [20]. In Affinity Capital, Ward J held that “it follows from this not being a hearing de novo that the onus is upon the defendants (as the persons seeking to set aside the examination summonses and notices to produce)”: at [24].

58    In the context of a review under s 35A of the FCA Act, it is well-accepted that the moving party before the registrar bears the onus of satisfying the Court that the orders were appropriately made. In Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143; 286 FCR 494, Colvin J, with whom Allsop CJ, Markovic, Derrington and Anastassiou JJ agreed on this issue, stated as follows at [63] in relation to a review under the equivalent section to s 35A(6) of the FCA Act:

Further, the de novo review is not to be seen as directed to a consideration of the correctness of the delegate’s decision or redressing error by the delegate. On review, the Court hears the case again unaffected by what has gone before. However, the Court does not act as if there is a new appellate proceeding. The review task it undertakes is a determination again of an application that has already been listed for hearing and proceeds in the same manner that would be the case if the power had not been delegated. In consequence, on review, the Court can entertain new arguments, receive new evidence or adjourn the proceeding but only to the extent, and in the circumstances where, it would do so in a matter that had already been set down for determination. Further, the applicant on review is the applicant on the application irrespective of whether the applicant was successful before the delegate. The same onus arises as if the application was being heard for the first time. This has particular significance for the review of a sequestration order. The review is initiated by the debtor (now bankrupt by the order to be reviewed), but proceeds as an application by the creditor on its petition.

(Emphasis added.)

59    This passage has been approved in various subsequent decisions: see, e.g., Spruson & Ferguson Pty Ltd v Gennochio [2024] FCA 1227 at [16] (Cheeseman J); Thompson v Ellis [2024] FCA 1200 at [25] (SC Derrington J); Allison v Murphy [2021] FCAFC 232 at [11] (Besanko, Colvin and Downes JJ).

60    The Court was not directed to any authority of this Court as to which party bears the onus in an application for review of orders made by a registrar pursuant to ss 596A and 596B of the Act. However, I note for completeness that in Restall v Kirk (in their capacity as joint and several receivers of Westlink Pty Ltd (recs apptd) (ACN 133 049 948)) [2023] FCA 893; 170 ACSR 549, SC Derrington J at [58] considered, in the context of an application to set aside summonses issued pursuant to a registrar’s orders under s 596B of the Act, that,

The applicants have not discharged the onus of demonstrating that the matters into which the Receivers wish to inquire do not genuinely relate to or arise out of the examinable affairs of Westlink. I am therefore satisfied that the maintenance of the Summonses is an appropriate exercise of the judicial discretion.

61    Her Honour’s finding appears directed to the expressions used by the Full Court in Kimberley Diamonds Ltd v Arnautovic [2017] FCAFC 91; 252 FCR 244 at [104] (which her Honour cited in Restall at [51]) where the Court considered that:

The position may be different if the examinee is able to demonstrate that the controversy, or the perceived controversy, or the unanswered questions, do not genuinely relate to or arise from the examinable affairs of the company, or are otherwise speculative, far-fetched or misconceived. In such circumstances, it could well be concluded that the examination was an abuse of process. The use of the examination process for such a purpose could rightly be found to be vexatious or oppressive and to bring the administration of justice into disrepute. The “heavy” onus of demonstrating this rests on the party seeking to stay the summons.

(Emphasis added.)

62    This characterisation of her Honour’s finding in relation to the applicants’ onus is supported by the surrounding context of the applicants’ submissions in Restall that the summonses were “not issued for a proper purpose and that the Receivers are engaged in a ‘fishing exercise’”, and were “being used for the improper purpose of applying pressure with a view to settling the potential claim the subject of the examination”: Restall at [36], [39]. This is consistent with the well-accepted proposition that where any contention is made that orders compelling a party to attend an examination or produce documents are oppressive, an abuse of process or were sought for an improper purpose, the party making this allegation bears a “heavy onus”: see, e.g., Re Elks [2025] FCA 1670; 176 ACSR 139 at [99], [417] (Wheatley J); Pitman at [45] (Derrington J); Bell Group at [65] (Jagot J); Ailwood v Colwell, in the matter of Octaviar Investment Notes Ltd (in liq) [2011] FCA 294 at [10] (Logan J).

63    That the applicants in Restall had failed to discharge their onus in this regard is not inconsistent with the receivers, who had obtained the summonses before a registrar, bearing an onus before her Honour in seeking the relevant orders under s 596B of the Act. Indeed, in Restall, SC Derrington J considered the anterior question of whether the “jurisdictional facts” enlivening the power to issue a summons under s 596B of the Act required the receivers in that case to, inter alia, “objectively satisfy the Court that the person whom they wish to summon may be able to give information about the examinable affairs of the company”: see at [49] – [50].

64    In any event, in light of the passage in Robson referred to above at [58], there may be a strong argument that in an application for review under s 35A(5) and (6) of the FCA Act of orders made by a registrar under ss 596A, 596B and 596D of the Act, the applicant before the registrar bears the same onus on a review to justify the making of those orders.

The primary judge’s decision

65    On the footing that the balance of the authorities referred to above demonstrate that the Interlocutory Process heard before the primary judge was a hearing de novo of the respondent’s originating process of 18 November 2024, then the primary judge was required, to use the expression in Pitman at [32], “to ascertain on the material before [her Honour] whether [she] should make [orders for production] and, if so, on what terms”. Further, on the basis that the above authorities hold that, in a hearing de novo under s 35A of the FCA Act of a registrar’s examination summons and orders for production of documents, the moving party before the registrar bears the onus of showing that the Court should make or continue the orders made by the registrar below, then the respondent bore the onus before the primary judge to show that the Document Production Orders should continue.

66    In these circumstances, there is force in the applicant’s submission that the primary judge did not establish the requisite nexus between the Document Production Orders and the examinable affairs of the Companies in Liquidation. As [20] of the Primary Judgment establishes, the Court was “left with the evidence in” the Applicant’s First Affidavit, which contained historical ASIC searches of Oakdale Group and the Companies in Liquidation, a copy of the Document Production Orders and the applicant’s short summary of the activities of Oakdale Group and his role as managing director thereof.

67    In the Primary Judgment, the learned primary judge at [19](3) accepted, relying on Wily at [27] – [29], that the applicant, in seeking to set aside the orders of the registrar in this matter, bore an “onus … to ‘demonstrate a positive case for interference’”. On the state of the evidence before her, which relevantly did not include the Confidential Affidavit, her Honour held that “that evidence does not make a positive case for interference”: Primary Judgment at [20]. In the circumstances of the applicant’s and respondent’s competing positions as to whether the Documents could be relevant to the purpose of the examination, her Honour considered at [22] of the Primary Judgment that,

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

(Original emphasis.)

68    This approach suggests an assumption by the primary judge that on a review of this kind (1) the starting point is that the Document Production Orders should stand; and (2) the applicant bears the onus of making a positive case for interfering with the Document Production Orders. Further, assuming that the relevant hearing in such an application is by way of a hearing de novo, the relevant question would appear to be, rather, whether “on the material before [her Honour] … [she] should make an [orders for production] and, if so, on what terms”: Pitman at [32].

69    This approach appears to stem from the primary judge’s reliance on Wily where at [27] – [28], Barrett J referred to the decision of the New South Wales Court of Appeal in Meteyard at [140] – [141], where Basten JA held that where a person seeks to have an examination summons under s 596B of the Act set aside, that person does not, simply by mounting a challenge to the summons, place an evidentiary onus on the liquidator to reveal the contents of a confidential affidavit filed pursuant to s 596C of the Act. If that person could not establish the relevant grounds for an order disclosing the confidential affidavit, then the material on which the decision to order an examination summons would not be before the Court when reviewing the summons: Wily at [27] – [28].

70    Barrett J then continued at [29] as follows:

It is thus for the present applicants to make a positive case for interference with the results flowing from the registrar’s decision that the examination summonses should issue. … [I]t would be an odd and anomalous result in the particular context if, when the registrar’s decision was challenged, it became incumbent upon the person who had obtained the issue of the examination summons to make the original application afresh, including by reading, upon the contested review hearing, the affidavit relied upon before the registrar which had already become subject to the s 596C(2) embargo on inspection. That embargo exists to guard against the possibility that knowledge on the part of the examinee of information in it may frustrate the examination process. The review procedure does not force upon the person seeking to uphold the ex parte order disclosure of the affidavit’s content, failing which that person is doomed to fail because of offering no evidence. …

(Emphasis added.)

71    In the circumstances of the authorities regarding review in this Court of orders such as the Document Production Orders under s 35A(5) and (6) of the FCA Act, as to both the nature of a hearing de novo and the onus of proof in such a hearing, it is arguable that the primary judge acted on a wrong principle in (1) applying the cases decided in the New South Wales Supreme Court to a review under s 35A(5) and (6) of the FCA Act which is by way of a hearing de novo, and (2) by casting a burden on the applicant to demonstrate a case for interference with the Document Production Orders. On this basis, it is arguable that the primary judge’s decision proceeded on the application of an incorrect principle, giving rise to error of the kind described in House.

72    In relation to the applicant’s submissions regarding [23] – [24] of the Primary Judgment, I agree that on the material before the primary judge (i.e., the Applicant’s First Affidavit), it is not apparent on what basis her Honour satisfied herself of a nexus between the Documents and the examination, noting that the Documents include the applicant’s income tax returns, income tax assessments and copies of bank statements. Similarly, the basis for her Honour’s rejection, at [26], of the applicant’s submission that “there is no demonstrated connection” between his “personal affairs” and the “examinable affairs” of the Companies in Liquidation, is not apparent in light of the evidence before her Honour. While it may be accepted that the powers under ss 596A, 596B and 596D may well intrude into individuals’ private affairs, it would appear that the Court is still required to be satisfied of a nexus between the Documents and the examination.

73    These circumstances give rise to the possibility that in arriving at her conclusion, her Honour failed to take into account a relevant consideration: namely, whether there was a connection between the Documents and the purpose of the examination. However, I do not consider that her Honour’s finding at [24] that the applicant did not show that the Documents were “sought for a purpose of obtaining information independently of the applicant’s examination”, or her Honour’s alleged failure to consider that compelling the production of the Documents is an “abuse of process” are attended by sufficient doubt to warrant reconsideration. In light of the authorities cited above, it appears well-accepted that the applicant bears a “heavy onus” in demonstrating these matters.

74    I therefore consider that, in relation to Ground 1 and Ground 2, the primary judge’s decision is attended with sufficient doubt to warrant reconsideration on appeal, on the basis of possible errors of the kind described in House identified above.

Ground 3

75    In relation to Ground 3, I accept the respondent’s submission that in light of the fact that (1) it was plain from the respondent’s submissions before the primary judge that the respondent sought the costs of the application if successful, (2) the primary judge’s orders as to costs are wholly orthodox, and (3) the applicant made no application to vary the primary judge’s orders on costs, the decision to award costs is not attended with sufficient doubt to warrant reconsideration on appeal. However, if the applicant is successful on appeal in respect of either Ground 1 or Ground 2, the prospect of the applicant seeking that the primary judge’s order as to costs be set aside is not foreclosed by Ground 3 not founding a grant of leave to appeal.

Substantial injustice

76    Although the applicant has not particularised in great detail the substantial injustice he will allegedly suffer if leave to appeal is not granted, I accept that being required to produce income tax returns, income tax assessments and copies of his bank statements in circumstances where, allegedly, no nexus exists between the Documents and the examinable affairs of the Companies in Liquidation, would constitute a substantial injustice.

Extension of time

77    In relation to the applicant’s application for an extension of time, I consider that the applicant should be granted an extension of time in circumstances where (1) there is no evidence to indicate that the applicant was dilatory in filing the application for leave to appeal and (2) the respondent would incur no prejudice given that the applicant served the respondent with the application for leave to appeal on 17 July 2025.

Conclusion

78    I consider that the applicant has established that the primary judge’s decision is attended with sufficient doubt on the basis of Ground 1 and Ground 2, and that the applicant would experience substantial injustice if leave to appeal were not granted, supposing the primary judge’s decision were wrong.

Associate:

Dated:    18 June 2026