Adelaide Steamship Co v Spalvins
[1997] FCA 755
•1 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
SUBPOENAS - application for leave to file and serve a further amended statement of claim - applicant’s reasons for seeking leave - respondents’ opposing application and challenging reasons - use of subpoena process at interlocutory stage - allegations for “entrapment” by applicant - whether subpoenas oppressive or fishing - whether legal professional privilege has been waived.
Australian Securities Commission Act (1989) (Cth)
Federal Court of Australia Act 1976 (Cth)
Wigmore on Evidence (McNaughton Rev.) 1961 (vol viii, par 2327)
Federal Court Rules O 27 r 2
Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 189 LSJS 364
Grant v Downs (1976) 135 CLR 674
Attorney General (NT) v Maurice (1986) 161 CLR 475
KC, KS, KF and KL v Shiley Incorporated and Pfizer Incorporated (unreported, judgment delivered 11 July 1997).
Goldberg v Ng (1995) 185 CLR 83.
Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Hunt v Walk (1985) 40 SASR 489
Finnie v Dalglish (1982) 1 NSWLR 400
Lucas Industries v Hewitt (1978) 18 ALR 555 at
Spencer Motors Pty Ltd v LNG Industries (1982) 2 NSWLR 921
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710
Arhill Pty Ltd v General Financial Company Pty Ltd (1991) 23 NSWLR 545
c.f.Hong Kong Bank of Australia Ltd v Murphy (1993) 2 VR 419
Pickering v Edmunds (1994) 63 SASR 357
THE ADELAIDE STEAMSHIP COMPANY v JANIS GUNARS SPALVINS and MICHAEL JAMES KENT and NEIL LESLIE BRANFORD and KENNETH WILLIAM RUSSELL and MICHAEL STEVENSON GREGG and DELOITTE HASKINS AND SELLS and DELOITTE ROSS TOHMATSU
No SG 3036 of 1994
O’LOUGHLIN J
ADELAIDE
1 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG3036 of 1994
)
GENERAL DIVISION )
BETWEEN:
THE ADELAIDE STEAMSHIP COMPANY LIMITED
Applicants
AND:
JANIS GUNARS SPALVINS
First Respondent
AND:
MICHAEL JAMES KENT
Second Respondent
AND:
NEIL LESLIE BRANFORD
Third Respondent
AND:
KENNETH WILLIAM RUSSELL
Fourth Respondent
AND:
MICHAEL STEVENSON GREGG
Fifth Respondent
AND:
DELOITTE HASKINS AND SELLS
Sixth Respondent
AND:
DELOITTE ROSS TOHMATSU
Seventh Respondent
JUDGE: O’LOUGHLIN J
PLACE: ADELAIDE
DATED: 1 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS:
That the subpoenas be set aside in part in terms consistent with these reasons.
That the applicant bring into Court within 14 days short Minutes of Order reflecting the decision of the Court.
All questions relating to the costs of and incidental to the subpoenas be reserved for further consideration.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 3036 of 1994
)
GENERAL DIVISION )
BETWEEN:
THE ADELAIDE STEAMSHIP COMPANY LIMITED
Applicants
AND:
JANIS GUNARS SPALVINS
First Respondent
AND:
MICHAEL JAMES KENT
Second Respondent
AND:
NEIL LESLIE BRANFORD
Third Respondent
AND:
KENNETH WILLIAM RUSSELL
Fourth Respondent
AND:
MICHAEL STEVENSON GREGG
Fifth Respondent
AND:
DELOITTE HASKINS AND SELLS
Sixth Respondent
AND:
DELOITTE ROSS TOHMATSU
Seventh Respondent
JUDGE: O’LOUGHLIN J
PLACE: ADELAIDE
DATED: 1 AUGUST 1997
REASONS FOR JUDGMENT
Applications to set aside subpoenas duces tecum.
The applicant in these proceedings is the Adelaide Steamship Company Ltd (“Adsteam” or “the Company”). It is suing its former directors and auditors for losses that are said to have arisen as a consequence of the payments of an interim and a final dividend to its shareholders in respect of the 1990 financial year. The claim is that the dividends were paid out of capital, not out of profits. The company has applied to the Court for leave to file and serve a further amended statement of claim. This application is opposed and the subpoenas upon which I must rule have been issued at the suit of the respondents as part of their opposition.
Notwithstanding the identity of Adsteam as the applicant, the suit has been instituted and is being conducted by the Australian Securities Commission (“the ASC”) pursuant to the powers vested in it by s 50 of the Australian Securities Commission Act (1989) (Cth) (“the ASC Act”). That section provides as follows:
“Where, as a result of an investigation or from a record of an examination ... it appears to the Commission to be in the public interest for a person to begin and carry on a proceeding for:
(a) the recovery of damages for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the investigation or examination related; or
(b) recovery of property of the person;
the Commission:
(c) if the person is a company - may cause; or
(d) otherwise - may, with the person’s written consent, cause;
such a proceeding to begun and carried on in the person’s name.”
In the debate that has ensued with respect to the various subpoenas that have been issued in these proceedings - all of which are directed to the ASC - no counsel has sought to differentiate between the applicant and the ASC; in particular, it was not suggested that the ASC was a non-party and that it should be regarded as such for the purpose of argument with respect to the subpoenas. In these reasons I will adopt the same approach. I will consider the competing claims with respect to the subpoenas as if the ASC were the applicant.
It will be helpful to identify the seven respondents and their respective advisers. The first named respondent is Mr Janis Spalvins, the former managing director of the company. He was separately represented by Mr DMJ Bennett QC on instructions from Messrs Thomson Playfords. The second and third respondents Messrs Kent & Branford are former executive directors of the company. They were both represented by Mr AJ Besanko QC on instructions from Messrs Finlaysons. The fourth and fifth respondents, Messrs Russell and Gregg were former non-executive directors of the company. They were both represented by Mr JLB Allsop SC on instructions from Messrs Phillips Fox. Finally there were the auditors, the sixth and seventh respondents, who were represented by Mr N Hutley and Mr Roberts on instructions from Messrs Mallesons Stephen Jacques. Mr RJ Whitington QC and Mr MF Blue were counsel for Adsteam on instruction from the ASC.
In order to understand why these subpoenas were issued and why they have been challenged it is necessary to give a brief outline of the history of this litigation. Proceedings were instituted by the filing of an application and statement of claim on 20 April 1994. At a directions hearing on the 13 May 1994, the matter was listed for trial to commence on 19 April 1995. However, hopes for an expeditious disposal of the litigation were dashed as a result of a decision of the auditors in May 1994 to seek judicial review of “the decision” of the ASC to cause these proceedings to be instituted in the name of the company. The judicial review proceedings only came to an end in December 1996 when the High Court refused the auditors special leave to appeal from the decision of a Full Court of this Court that had upheld “the decision” of the ASC. Meanwhile on 30 January 1995, the trial date was vacated. The directors had not initially joined with the auditors in the review proceedings. However, in January 1995 they instituted like proceedings which they discontinued in December 1996 following upon the decision of the High Court.
An amended statement of claim was filed on 30 September 1994 but there is no need to highlight the nature of the amendments. As it is a very long document, extending to 215 pages, it is not possible to summarise it accurately in a few short sentences. However, I believe that it will be sufficient for the resolution of the present issues to proffer the following observations. It was claimed (in both the original and amended statement of claims) that Adsteam had investments in four named subsidiary companies and that the value of the investments in each of those subsidiaries had been overstated in the company’s accounts for the six months ending on 31 December 1989 (“the 1990 interim accounts”) and for the twelve months ending on 30 June 1990 (“the 1990 final accounts”). It was then alleged that the total amount of all overstatements in the 1990 interim accounts was $235,093,672 and that the corresponding figure in the 1990 final accounts was $235,980,691. Finally, it was claimed that if the value of the investments had been written down in the company’s profit and loss account there would have been no profits out of which to pay the dividends.
An interim dividend was declared in February 1990. It amounted to about $131m. A final dividend of about $97m was declared in the following November. Both the interim and final dividends were paid out to shareholders in due course.
In addition to this cryptic summary, it should be added that there were the necessary allegations that the respondents respectively knew or ought to have known the true state of affairs with respect to the investments and their effect on Adsteam’s accounts. The respondents have denied these allegations. They have also arguably raised an issue that refers to the net worth of the Adsteam group. For example, the amended defence of the second respondent, Mr Kent contains the following plea, with respect to one of the four investments in sub-par 49.2:
“(1) ...
(2) the second respondent believed on reasonable grounds that a number of wholly owned subsidiary companies had net assets which in value substantially exceeded the value at which Adsteam carried the investment in those wholly owned subsidiary companies in its accounts;
(3) the second respondent believed on reasonable grounds that the total net assets of the wholly owned subsidiary companies exceeded the value at which Adsteam carried the investment in the wholly owned subsidiary companies in its accounts;
(4) the second respondent believed on reasonable grounds that at any time Adsteam could have caused the wholly owned subsidiary companies referred to in (2) above to undertake a liability to repay or to repay [sic] the Jomet loan or to transfer sufficient assets to Jomet so that Jomet could repay the Jomet loan.”
The subject of the applicant seeking leave to file a further amended statement of claim was addressed in an order of the Court of 6 September 1996. The order, in part, reads as follows:
“If the Applicant serves on the respondents its proposed further amended statement of claim by Friday 27 September 1996, the Applicant shall be at liberty to file and serve a notice of motion and supporting affidavits seeking the leave of the Court to file and serve such further amended statement of claim returnable for mention at 1:00 pm on Friday 11 October 1996.”
As events transpired, the applicant did not comply with that time-table. However, on 17 March 1997 the applicant did file a notice of motion seeking the leave of the Court to file and serve a further amended statement of claim (“the proposed statement of claim”). A copy of it was annexed to the affidavit of Nicholas David Bampton sworn on that day. The affidavit did not set out any reasons in support of the need to file the proposed statement of claim. Mr Bampton merely deposed to the fact that he was a solicitor retained as a civil litigation consultant to the ASC and that the ASC was seeking the leave of the Court to file and serve the proposed statement of claim. His affidavit concluded with the deposition that on 21 February 1997 a copy of the proposed statement of claim was delivered to each of the solicitors for the respondents.
The applicant’s notice of motion came on for mention and directions on 8 April 1997. On that date the Court made orders to the following effect:
the applicant was to file and serve by 16 May 1997 such additional material as it may be advised (and whether by way of evidence verified on oath or by affirmation or by way of written submissions or otherwise) in support of its application for leave to amend further the statement of claim
each respondent was to file and serve all like material by 6 June 1997
the applicant was to file and serve by 27 June 1997 such material in reply as it may be advised
each respondent was to file and serve by 11 July 1997 a written outline of his or their submissions
the applicant was to file and serve by 18 July 1997 its written submissions in reply (if any)
the notice of motion was listed for hearing on 22 and 23 July 1997
The proposed statement of claim aims to extend the claims of the company beyond the four identified investments and to present a case to the effect that the respondents knew or ought to have known that the “real value” of the company was such that there were no sufficient profits to sustain the interim and final dividends. During argument this was sometimes referred to as the “valuation” issue and it will be convenient to use that term in these reasons. In short the valuation issue would mean that the trial would not be limited to an examination of the four investments and the respondents’ knowledge of them; it would now have to address a valuation exercise of the company, or perhaps, a valuation of the whole Adsteam group (which is said to have then comprised in excess of 1000 companies) and the respondents’ knowledge as to those subjects.
Mr Bampton swore a further affidavit on 6 June 1997 (“the Bampton affidavit”). In par 3 of that affidavit Mr Bampton identified it as having been sworn in response to the order of the Court of 8 April 1997. He then deposed (and I do not understand his summary to be challenged) that it was his understanding that the respondent directors’ primary objection to the filing of the proposed statement of claim was the inclusion of two sections, namely; pars 109A to 109AU and pars 170A to 170AAJ which dealt respectively with Adsteam’s financial position at the times of the declarations of the interim and final dividends.
In par 13 of the Bampton affidavit, it was stated that the respondent directors had put in issue in their defences and in their answers to requests for further and better particulars of their defences:
“their belief as to, the reasonableness of their belief as to, and the actual value or shareholders equity of the Applicant;
their belief as to, the reasonableness of their belief as to, and the actual value or shareholders equity of the Adelaide Steamship group ...;
their belief as to, the reasonableness of their belief as to, and the actual value or shareholders equity of [certain subsidiary companies];
their belief as to, the reasonableness of their belief as to, and the actual distributable profits and reserves of the Applicant and the Adelaide Steamship Group;
the dividend and income flows between members of the Adsteam group and thus the Adsteam Group structure and cross-shareholdings.”
Mr Bennett, counsel for Mr Spalvins, refuted the propositions advanced by Mr Bampton in paragraph 13 of the Bampton affidavit but I do not consider it necessary to resolve that particular issue at this stage, although it may become necessary to address it in more detail when the time comes to consider the application for leave to file and serve the proposed statement claim.
It will be necessary to return to the contents of the Bampton affidavit in detail later in these reasons as its contents generated three of the five subpoenas that were called on 22 July. The remaining subpoenas related to the contents of the affidavit of Paul Neil Dugan sworn on 18 July 1997 (“the Dugan affidavit”).
In written submissions that were filed in court after the filing of the Bampton affidavit, all five directors attacked the bona fides of the ASC in what may be described as its late application to change the thrust of the applicant’s case against all respondents. The written submissions of the first respondent were not filed until the morning of the hearing but those of the second and third respondents were filed in court on 14 July 1997 and those of the fourth and fifth respondents on 7 July 1997. I infer that they would have been served on the ASC as the solicitor for the applicant on or shortly after those dates. The auditors did not file written submissions nor did they cause subpoenas to be issued, but I did not understand them to be disassociating themselves from the stand taken by the directors.
The case that the directors intend to advance in opposition to the application for leave to file and serve the proposed statement of claim is that it amounts to an “ambush” and that the ASC has known all along that the real case against the respondents was the “valuation” issue. The directors intend to argue that the only proper inference that can be drawn from the undisputed facts is that the ASC held back its “true” case until the last moment so as to cause maximum embarrassment to the respondents.
In the written submissions of Mr Allsop, counsel for Messrs Russell and Gregg, the fourth and fifth respondents, the following passages appear:
“As is apparent now, the ASC has always intended to propound a case ... based on the lack of any value in 1990 in the ‘wider group’”
and
“It is a case which was masked in reply: deliberately so.”
and
“It is a case which the ASC steadfastly refused to identify throughout 1994, 1995 and 1996 ...”
and
“It is a case with which presumably, it was intended to ambush the respondents in March (sic) 1995 when the matter was set down for hearing.”
and
“While the ASC was deliberately refusing to tell the non-executive directors about the case which it intended to propound it was busy using its coercive investigative powers to gather evidence for its real case.”
and
“It behoved it (ie ASC) to act openly, candidly and fairly with the parties, and the Court; not least in circumstances in which a dishonesty was pleaded. It has not done so. It has steadfastly refused to tell these parties and the Court what its real case is.”
The complaints of Mr Besanko, counsel for Messrs Kent and Branford are in the milder terms but are no less serious:
“It made a deliberate decision not to bring forward (or foreshadow) these amendments at the time these proceedings were instituted.”
and
“The applicant made a decision not to advise either the court or the respondents of the fact that it was gathering evidence with a view to making the amendments.”
The written submissions that were filed on behalf the Mr Spalvins, the first respondent, echoed the complaints that had been made earlier by the other respondents. They refer to “the decision by the ASC not to disclose its intended case in the statement of claim” and they complain that the conduct of the ASC “reflects conduct inconsistent with that which could be expected from an authority purporting to act in the public interest”.
As I have said, and as I must emphasise, all these allegations (which have to be interpreted as accusations of bad faith and sharp practise on the part of officers of a public authority) are to be found only in the written submissions of counsel. No respondent, nor any person acting in the interests of any respondent, has filed an affidavit deposing to these allegations or even to a belief that such allegations can properly be advanced. Yet notwithstanding, the applicant responded to these allegations by having Mr Bampton file a further explanatory affidavit dated 21 July 1997. Two affidavits of Paul Neil Dugan, sworn on 18 and 21 July 1997, and an affidavit of Timothy Patrick Howes sworn on 22 July 1997 were also filed. Mr Dugan is a solicitor formerly in the employ of the ASC and the officer responsible for drafting the proposed statement of claim; Mr Howes was previously a senior investigating officer in the employ of the ASC. These affidavits sought to explain the earlier conduct of the ASC in the prosecution of these proceedings. They were intended to refute the allegations that had been made by Mr Allsop, and, more recently, by Mr Besanko.
The parties had agreed that it would be appropriate for counsel for the applicant to open his case on the application for leave to file and serve the proposed statement of claim. Each counsel then read the affidavits in support of or in opposition to that application; objections were resolved and thereafter the subpoenas were nominally called. Mr Whitington then moved that each of them be set aside.
In considering the applications to set aside these subpoenas, it will be necessary and appropriate to have regard to the contents of the Bampton affidavit and the Dugan affidavit. Mr Whitington submitted that I should not do so adversely to the interest of the company. He said that if any material appeared in any affidavit that might assist the respondents’ cause, it should be considered as a form of “entrapment”. It was his submission that the applicant was required to answer the serious allegations that had been made against it in counsels’ submissions and hence it would be unfair and a “trap” if, by answering those allegations the applicant was thereby forced to produce documents that it would not otherwise have had to produce. Mr Whitington submitted that the nature of the allegations that were contained in the written submissions of the respondents had “forced” his client to make a response. By being so “forced”, his client should not thereby be disadvantaged. He advanced the decision of the Full Court of the Supreme Court of South Australia in Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 189 LSJS 364 as authority for that proposition but, in my opinion, that decision is readily distinguishable. The Full Court was concerned with the proper interpretation of r 59.02 of the Supreme Court Rules. They provide:
“59.02 Where a party has filed a pleading or an affidavit referring to a document he shall within seven days of receipt of any request from another party in accordance with the request either make such document available for inspection by that other party, or furnish that other party with a copy of the document at that party’s cost.”
As Perry J observed:
“The rule should not be construed so as to oblige a party to produce a document which it has referred to in the context of an affidavit sworn to support an objection to the production of the document.”(at 383)
Lander J said on the same subject:
“This is a situation where a party was genuinely attempting to comply with the procedures of the Court by putting sufficient information before the Court to enable that party to argue in opposition to the application. It would be inconsistent with the general purpose of the Rules to interpret the Rules so as to allow the party, who made the application, to rely upon the other parties genuine endeavours to defeat the application as a reason for the granting of the application.” (at 397)
No such compulsion was on the applicant in this case. It was not forced to respond to the allegations in the written submissions. It had a need to disclose to the Court sufficient information as would be necessary to obtain the Court’s leave to file and serve the proposed statement of claim, but it was entirely up to the applicant to decide whether it would seek leave to amend and, if so, the information that it would place before the Court. There was no compulsion from any quarter on the applicant.
As the Bampton affidavit preceded counsels’ submissions; there can be no question of entrapment in relation to that affidavit. But, in any event, I find myself unable to accept Mr Whitington’s submission; the applicant was not required, either as a matter of law or of practice, to respond to the unsubstantiated allegations that were contained in counsels’ submissions. In choosing to respond, it must be regarded as having done so in an exercise of free will.
However, there is another matter. I have identified the nature of the allegations that have been made in counsel’s submissions - but only for the purpose of explaining the circumstances surrounding the hearing of these applications. They are not evidence and they are not to be treated as evidence. I therefore reject Mr Whitington’s submission that there has been some form of “entrapment” perpetrated.
Mr Whitington next claimed that subpoenas such as those presently before the Court were inappropriate on an interlocutory hearing. No authority was advanced in support of that proposition and in my opinion, none exists. The relevant provision in the Rules of Court for the issue of subpoenas is O 27 r 2. It provides:
“2. The Court may, in any proceeding, issue a subpoena to give evidence, or a subpoena for production, or a subpoena both to give evidence and for production in the prescribed form or in such other form as the Court may direct for the attendance of the person named before the Court or before any Judge, officer, examiner or other person having authority to take evidence.”
The word “proceeding” is not defined in the Rules but in the Federal Court of Australia Act 1976 (Cth) it is defined as meaning:
“... a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal”
The reference to “an incidental proceeding” clearly includes all interlocutory processes and the meaning of the word in the Rules should take its flavour from the Act.
Mr Whitington next submitted that the respondents who caused the subpoenas to issue should have to demonstrate that there is or are documents in existence to support the use of the subpoena process, and, in the circumstances of this case, to support the assertions of bad faith. It will not be necessary to consider the latter point; there is no evidence of bad faith before the Court. As to the first point, the subpoenas are to be considered by having regard to the fact that they are referable to the applicant’s application for leave to file and serve the proposed statement of claim and the reasons advanced by the applicant in support of that application. It is necessary for the issuing parties to establish relevance but it is not necessary for them to establish relevance if there are specific documents in existence.
In addition to these matters Mr Whitington also submitted that the subpoenas were oppressive and fishing and that the documents to which they were directed were the subject of legal professional privilege. I will deal first with the question of privilege.
A claim of legal professional privilege is not a ground for setting aside a subpoena; the claim is properly made after the subpoena has been answered and there is an application by the issuing party (or some other party) to inspect the documents that are the subject of the claim. That procedure was not followed in this case. But as no complaint was made, I am prepared to state my reasons on the subject of privilege at his stage.
In Grant v Downs (1976) 135 CLR 674 at 685, the High Court stated the policy considerations behind the recognition by the courts of claims of legal professional privilege:
“The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complication discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege, legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.”
In Attorney General (NT) v Maurice (1986) 161 CLR 475 the High Court established that legal professional privilege is a substantive general principle of the Common Law; it is not a mere rule of evidence: at 490 per Deane J. The privilege can, of course, be waived expressly or by implication. In the present case it could not be suggested that there has been any express waiver. However, counsel for the respondent directors have argued strongly that there is a waiver by implication, particularly having regard to the contents of the Dugan affidavit. In assessing the issue of waiver, an objective test is to be used. It may be of use to have regard to the intentions of the individual for the purposes of assessing, objectively, whether privilege has been waived but the subjective intention will not be the determining factor. In Maurice’s Case, Gibbs CJ (at 481) stated that the principle applicable to the issue of waiver was that stated in Wigmore on Evidence (McNaughton Rev.) 1961 (vol viii, par 2327):
“In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.”
Having quoted the above passage, Gibbs CJ then said:
“The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intention of waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it is privileged from production.” (at 481)
The authorities on this subject have been recently outlined by Tamberlin J in KC, KS, KF and KL v Shiley Incorporated and Pfizer Incorporated (unreported, judgment delivered 11 July 1997). His Honour pointed out that the principles relating to imputed waiver and fairness as formulated in Maurice were later confirmed and applied by the High Court in Goldberg v Ng (1995) 185 CLR 83.
I turn next to the issue of oppressive and fishing subpoenas.
In Commissioner of Railways v Small (1938) 38 SR (NSW) 564 at 575, Jordan CJ discussed the subject of “fishing”. He said that in the absence of special circumstances:
“… a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing”, ie endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all… or to discover the nature of the other side’s evidence…”
In support of a claim that the subpoenas were fishing Mr Whitington relied upon the decision of the Full Court of the Supreme Court of South Australia in Hunt v Walk (1985) 40 SASR 489 where King CJ said at 493-494:
“The subpoena process may not be used as a means of obtaining discovery of documents from the Commissioner of Police or as a means of obtaining information in the hope that it may lead to the ascertainment of witnesses or evidentiary documents.”
I am unable to see how the quoted passage can assist the applicant. First the Commissioner of Police was a non party to the proceedings; secondly, there is, in the present case, an identification of documents in the sense that there is a reference to documents pertaining to nominated subject matters. I cannot accept that these subpoenas are therefore fishing.
A subpoena will be oppressive if it places on the person to whom it is addressed an obligation to form a judgment as to which of his or her documents relate to issues between the parties: Finnie v Dalglish (1982) 1 NSWLR 400 at 407 per Rath J. If, for example, the subject matter is not stated precisely, or if, at the time of the issue of the subpoena, the issues between the parties have not been joined, then the need for precision in the subpoena is the greater. In this particular case, I am treating the subpoenas as having been addressed to a party to the litigation and the subject matters to which the subpoenas are addressed are, in my assessment, clear and concise. What is more, I am satisfied that Mr Bampton, for example, would well know and understand the documents that are required; there is, additionally, of course, a responsibility on the person to whom a subpoena is directed to“read it sensibly and with reference to the circumstances as known to him”: Lucas Industries v Hewitt (1978) 18 ALR 555 at 571.
In several of the subpoenas there are references to “documents containing a statement of or a reference to” nominated subjects. No periods of time have been identified but is clear that the ambit of time would be identifiable with ease, by a responsible officer of the ASC, as would the actual detail of the documents. In the circumstances of this case, I am not persuaded that the expression is necessarily to wide: c.f. Lucas Industries Ltd v Hewitt (supra) at 573, where it was held that the expression “relating to” was not necessarily to wide in all the circumstances: see also the discussion of Waddell J on this subject in Spencer Motors Pty Ltd v LNG Industries (1982) 2 NSWLR 921 at 929. A subpoena may become excessively burdensome, especially if it is directed to a non-party, by virtue of the large number of documents sought, because of questions of relevance, or because it requires the party served to make a judgment as to which documents should be produced. For example, in Commissioner of Railways v Small (supra) Jordan CJ said:
“Where the sub-poena is addressed to a party it is still necessary that it should state with reasonable particularity the documents which are to be produced. Even if the documents are specified, a sub-poena to a party will be set aside as abusive if great numbers of documents are called for and if it appears that they are not sufficiently relevant.”(at 574)
I have borne these warnings in mind in coming to my conclusions in this case.
Mr Whitington also submitted that the reference to the expression “all documents” without being more specific, was oppressive. In referring to one particular matter, he described it as a “scatter gun” approach. But his complaints fell short of suggesting that officers of the ASC did not understand what documents would be the subject of the subpoenas or that the number of documents would make compliance with the subpoenas an oppressive exercise. Nor was it suggested that compliance with the subpoenas would involve unnecessary and unreasonable costs.
In Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710, Clarke J discussed “oppression” in these terms:
“The Court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances, the demand is, for relevant purposes, too wide or uncertain. For this purpose, it must determine whether the terms of the subpoena convey to the recipient in relatively clear language, the documents or class of documents called for” (at 721).
Rogers J quoted this passage in his judgment in Arhill Pty Ltd v General Financial Company Pty Ltd (1991) 23 NSWLR 545 adding that there have been “many changes in court procedure since his Honour’s judgment was delivered” (at 555). He then expressed his concern about “the Rolls Royce treatment afforded to individual disputes” (at 556), thereby inferring that the time might have arrived for Courts to impose greater restraints on the parties. If that fairly represents what his Honour was saying, it is easier said than done. With respect, my view is that there is, in the majority of cases, a greater use of the interlocutory processes, as opposed to the extravagant or unnecessary use of them. Once upon a time, parties would be prepared to go to trial with a minimum of fuss. Not so these days. If, as is the case here, a respondent wishes to contest his opponents application, often that opposition will take the form of oral evidence and the use of processes such as discovery and subpoenas. In my opinion, the views expressed by Clarke J should be followed.
The five subpoenas were directed, in part, to documents that had been specifically referred to, either in the Bampton affidavit or the Dugan affidavit. The balance of the subpoenas were directed to documents in respect of subject matters referred to in those affidavits on the assumption that documents existed with respect to those subject matters.
To assess each subpoena it will be necessary to have regard to the background to this litigation as I have described it, the circumstances surrounding the preparation of the Bampton affidavit and the Dugan affidavit and the contents of those affidavits.
There is little further that I need say about the background except that it may be desirable to list this chronology:
20 April 1994 original application and statement of claim filed
19 May 1994 action listed for trial in April 1995
May 1994 auditors commence Judicial Review proceedings
31 August 1994 Defences filed
January 1995 Directors institute Judicial Review proceedings
30 January 1995 Trial date vacated
September 1996 Applicant addresses the topic of the proposed statement of claim
December 1996 High Court refuses auditors’ application for special leave to
appeal and directors discontinue Judicial Review proceedings
March 1997 applicant seeks leave to file proposed statement of claim
As has been previously stated there were, in all, five subpoenas. As they need to be identified, the following summary will be of some assistance:
On 17 July 1997 Messrs Thomson Playford, the solicitors for Mr Spalvins, the first respondent, caused a subpoena to be issued. That subpoena sought the production of documents that were expressly or impliedly referred to in the Bampton affidavit sworn on 6 June 1997. That subpoena can be called “the first Bampton subpoena”.
On 18 July 1997 Messrs Finlaysons, the solicitors for Messrs Kent and Branford, the second and third respondents, caused a subpoena to be issued. That subpoena also sought the production of documents that were expressly or impliedly referred to in the Bampton affidavit. That subpoena can be called “the second Bampton subpoena”.
At about the same time (no date appears on the relevant document) Messrs Phillips Fox, the solicitors for Messrs Russell and Gregg, the fourth and fifth respondents, caused a subpoena to be issued. As with the first two subpoenas, that subpoena also sought the production of documents that were expressly or impliedly referred to in the Bampton affidavit. That subpoena can be called “the third Bampton subpoena”.
On 21 July 1997, Messrs Finlaysons caused a subpoena to be issued. That subpoena sought the production of documents that were expressly or impliedly referred to in the Dugan affidavit. That subpoena can be called “the first Dugan subpoena”.
Finally on 22 July 1997, the morning of the hearing, Messrs Thomson Playford, caused a subpoena to be issued. That subpoena also sought the production of documents that were expressly or impliedly referred to in the Dugan affidavit. That subpoena can be called “the second Dugan subpoena”.
Save for the paragraphs numbered 20, 21 and 22 appearing in the Schedule to the first Dugan subpoena, the contents of the second Dugan subpoena mirrored pars 1-19 of the Schedule to the first Dugan subpoena. During the course of the hearing, Mr Besanko informed the Court that he was not pressing for an answer to the call for the documents referred to in pars 20, 21 and 22. Accordingly these last two mentioned subpoenas are identical and reference need only be made to one of them.
I turn now to consider the three subpoenas that were issued at a consequence of the Bampton affidavit.
In par 36 of the Bampton affidavit Mr Bampton referred to the draft valuation report of a Mr Lonergan. Mr Lonergan, a partner in the firm of Messrs Coopers & Lybrand (Sydney) Chartered Accountants, had been retained in about February 1991 by the company to prepare a valuation report of Adsteam and its subsidiaries as at December 1990. Apparently that report (or perhaps a draft of it) had been delivered to the company in about April 1991. Mr Howes said in his affidavit that he formed the opinion that Mr Lonergan would be able to give evidence (relevant to the investigations, that he (Mr Howes) was then undertaking) both as to matters of fact relating to the valuation which Mr Lonergan had undertaken and as an expert in relation to the valuation of Adsteam and its subsidiaries.
Mr Bampton went on to say in par 36 of his affidavit that Mr Lonergan had reported that as at December 1990 the net valuation of the Adsteam group was somewhere between a deficiency of $21.7m and surplus of $97m, giving a value to the shares in Adsteam of something between nil and $0.24 per share. Mr Bampton then said:
“Such a valuation meant that there were no available asset reserves in either the Applicant or the Adelaide Steamship Group as at 31 December 1990.”
Paragraph 37 of Mr Bampton’s affidavit referred to the fact that the respondent directors had been examined by the ASC pursuant to s 19 of ASC Law as had representatives of the auditors. He then went on to depose in these terms:
“From an examination of those transcripts, investigative officers of the ASC came to the belief that in Defence of an assertion that certain write downs ought to have occurred (thereby destroying profit available for distribution as a dividend in the 1990 financial year), the directors and auditors would assert an entitlement to rely on the asset reserves of either the Applicant or the Adelaide Steamship Group to either support the payment of the dividend or, at the least, assert that the alleged breaches were technical and no real harm had been done as there were sufficient asset reserves which could have been used to pay the dividend”(emphasis added)
The three Bampton subpoenas addressed this paragraph of the Bampton affidavit in similar terms. It will be sufficient to quote from the first Bampton subpoena. It called for the production of:
“All documents evidencing the belief referred to in paragraph 37 of the affidavit of Nicholas David Bampton sworn 6 June 1997 ... .”
The claimed belief is specifically tied to the transcripts; they must be produced; any privilege that might have attached to them has, in my opinion, been waived. But that is not the end of the matter. Save for the transcripts of evidence, no other documents are referred to in this paragraph, either expressly or by implication. It would, however, be a fair inference that such documents would exist. There might have been internal memoranda passing between officers of the ASC in which the possibility of such a defence was raised. Presumably, there might be written instructions to legal advisers and written advices from solicitors or counsel, along with drafts of proposed pleadings. But all such documents as have just been described, would clearly fall within the umbrella of legal professional privilege. They would have been brought into existence for the purpose of these legal proceedings. It could not be said that the contents of this paragraph constitute a waiver of privilege with respect to those documents. They were not part of the source of the belief. They came into existence (if, indeed, they do exist) subsequent to and because of the belief. Save for the transcripts, par 1 of the Schedule to each of the first three subpoenas should be set aside.
If it should be that there is doubt about whether legal professional privilege has been waived with respect to Mr Lonergan or his reports, that doubt should be resolved in favour of the applicant. Privilege is a substantive right and it is not to be lightly taken away: c.f.Hong Kong Bank of Australia Ltd v Murphy (1993) 2 VR 419 at 442 per Smith J; Pickering v Edmunds (1994) 63 SASR 357 at 359 per Duggan J.
The information set out in pars 40-46 of Mr Bampton’s affidavit was extensively addressed in the first three subpoenas. To appreciate the competing arguments with respect to those subpoenas, it is necessary to set out the contents of those paragraphs in full:
“40.Mr Lonergan was examined by the ASC on 1 March 1994. That examination was continued on 29 March 1994, 30 March 1994 and 15 April 1994. The transcript of examination has been discovered in these proceedings. As appears from the transcript, the ASC was seeking to obtain Mr Lonergan’s opinion as to the value of the Applicant and the Adelaide Steamship Group as at 5 November 1990.
41.Following the April examinations, the ASC requested Mr Lonergan to provide assistance to the ASC pursuant to section 19(2) of the ASC Law by providing a written valuation of the Applicant in the Adsteam Group as at 5 November 1990 and 6 April 1990. He could then prepare the reports with the assistance of his firm and hand up the valuation reports at the conclusion of the examination. The alternative was to continue to proceed to examine Mr Lonergan. He agreed to assist the ASC by preparing written valuation reports.
42.Initially it was envisaged that Mr Lonergan would be assisted in the preparation of his reports by ASC officers. By late July 1994 it was agreed that Mr Lonergan would use his firm to assist him with preparing the reports.
43.In late February 1996 I was advised that Mr Lonergan had finalised his reports. On 7 March 1996 the Lonergan examination previously adjourned on 15 April 1994 was concluded. At that examination previously adjourned on 15 April 1994 was concluded. At that examination Mr Lonergan delivered his valuation reports of the Applicant and the Adsteam Group as at 6 April 1990 and 5 November 1990.
44.By letters dated 19 March 1996 I forwarded copies of the Lonergan valuation reports to the solicitors for the Respondents and advised that the ASC intended to release a copy of Mr Lonergan’s transcript once it had been signed. By letters dated 30 April 1996 I forwarded copies of Mr Lonergan’s transcript to the Respondents’ solicitors.
45.Following receipt of the Lonergan valuation reports, I gave consideration to the amendment of the Replies to plead relevant matters contained in those reports in response to the issues raised by the Defences and referred to in paragraph 13 above. On consideration, I formed the view that the matters in the reports which ought to be raised in the pleadings went, inter alia, to the relief sought in the Application and therefore should more properly be included in the Statement of Claim rather than in the Replies.
46I also formed the view that the other new matters [such] as the Applicant’s financial position alleged in the proposed further amended statement of claim not raised in the Lonergan valuation reports had a bearing on the issue of relief and ought be included in the statement of claim even though such matters were provoked by the Defences”
The second Bampton subpoena is the most extensive. I therefore set out its contents:
“4.In relation to paragraphs 41 and 42 of the Bampton affidavit, all documents which contain a statement of or reference(s) to:
4.1the ASC’s request of Mr Lonergan to provide assistance to the ASC;
4.2Mr Lonergan’s response to such requests;
4.3negotiations between the ASC and Mr Lonergan concerning the provision of assistance to the ASC;
4.4the agreement to assist the ASC by preparing written valuation reports; and
4.5the terms (including terms as to remuneration) upon which Mr Lonergan agreed as referred to in paragraph 4.4 above;
4.6the agreement that Mr Lonergan would use his firm to assist him with preparing the reports;
4.7the terms (including terms as to remuneration) upon which Mr Lonergan agreed as referred to in paragraph 4.6 above;
4.8Mr Lonergan’s entitlement to, claims for, and payment of his allowances and expenses pursuant to Regulation 8 and Schedule 2 of the ASC Regulations.
5.All documents including correspondence between Mr Lonergan and/or Coopers and Lybrand and the ASC concerning Mr Lonergan’s reports and Mr Lonergan’s examination as referred to in paragraphs 43 (reports) and 40 (examination) respectively of the Bampton affidavit.
6.In relation to paragraph 45 of the Bampton affidavit, all documents (including any advice from counsel) which contain a statement of or reference(s) to:
6.1the consideration which Nicholas Bampton gave to the amendment of the Replies to plead relevant matters contained in the Lonergan reports in response to the issues raised by the Defences and referred to in paragraph 13 of the Bampton affidavit;
6.2the formation of the view by Nicholas Bampton that the matters in the reports which ought to be raised in the pleadings should more properly be included in the Statement of Claim rather than the Replies.
7.In relation to paragraphs 46 of the Bampton affidavit, all documents which contain a statement of or reference(s) to the view which Nicholas Bampton formed that the other new matters such as the Applicant’s financial position alleged in the proposed further amended statement of claim not raised in the Lonergan valuation reports had a bearing on the issue of relief and ought to be included in the statement of claim even though such matters were provoked by the Defences.”
In the first Bampton subpoena, the subject of correspondence passing between Mr Lonergan and the ASC was addressed in terms of the preparation of Mr Lonergan’s valuation reports as referred to in par 44 of the Bampton affidavit. However, it need not be the subject of independent consideration. It will rise or fall with the second Bampton subpoena. The third Bampton subpoena was in the same terms as the first Bampton subpoena and need not be considered separately.
In my opinion the documents that are referred to expressly or by implication in pars 40 to 44 (other than transcripts of evidence and the reports) should be protected by legal professional privilege. It seems clear to me that they would have been prepared in anticipation of these proceedings. Different considerations apply with respect to the contents of pars 45 and 46. For the reasons set out hereunder I do not consider that they are likewise protected. I am of the opinion that pars 4 and 5 of the Schedule to the second Bampton subpoena should be set aside but that pars 6 and 7 should be answered. Paragraph 2 of the first and third Bampton subpoena should also be set aside.
Paragraphs 40 to 46 of the Bampton affidavit record two material subjects:
the ASC made a decision to obtain Mr Lonergan’s opinion as to the value of Adsteam as at 6 April and 5 November 1990. A copy of his report was forwarded by the ASC to the solicitors for the respondents on about 19 March 1996 (pars 40-44)
subsequent to the receipt of the Lonergan report, but obviously influenced by its contents, Mr Bampton made a decision that “the relevant matters contained in those reports” (one of which was the “valuation” issue) “should more properly be included in the statement of claim rather in the reply”(par 45).
In using the Bampton affidavit to persuade the Court that leave ought be granted to the applicant to file and serve the proposed statement of claim, the applicant has seen fit to advance as its justification in support of that application the decision of Mr Bampton (as expressed in par 45 of the Bampton affidavit). In my opinion, Mr Bampton is entitled to be tested on his decision making process. Those opposing the application are entitled to cross-examine him and he should be required to produce all documents that are relevant to this decision making process, even those that would normally be protected by legal professional privilege. The applicant, through Mr Bampton, has elected to advance a proposition that the contents of the Lonergan report have justified a change in direction and that the change of direction is best accommodated in the proposed statement of claim - not in an amended reply. Those propositions must withhold scrutiny. It would be unfair to the respondents to tell them that although they have the right to cross-examine Mr Bampton on the subject, they have no right to examine documents which relate to the decision making process. But that reasoning does not apply to the earlier decision to retain Mr Lonergan. I regard that as independent of Mr Bampton’s decision making process with respect to the pleadings. I do not consider that some implied waiver of privilege with respect to that process must flow back to the earlier decision to retain Mr Lonergan.
I turn now to a consideration of the Dugan affidavit.
In pars 3 to 6 of his affidavit Mr Dugan referred to Mr Howes’ request in about August 1993 that the Legal Division of the ASC examine the company’s investments in its four subsidiaries to which reference has earlier been made. In par 6 Mr Dugan said that he formed the opinion that the transactions ought to have been written down. At this stage, I have no difficulty in concluding that legal professional privilege would apply to communications between a solicitor and client relative to the subject of the likely institution of legal proceedings. Paragraphs 1 and 2 of the Schedule to the Dugan subpoenas should therefore be set aside as they relate to documents dealing with different aspects of the Lonergan reports and the retainer of Mr Lonergan. However, in pars 7, 8 12 and 13 of his affidavit, Mr Dugan addressed the “valuation” issue saying that he had considered it and that he had decided that an argument to the effect that there was an excess of value in respect of other assets elsewhere within the group was not available as a defence to the respondents. Mr Dugan believed that “it was necessary to focus on the parent company’s profit” and not the profit of the group.
There is then an enigmatic statement in par 9 of the Dugan affidavit:
“In late August 1993, I caused briefs to be sent to counsel at the independent bar and received counsel’s opinion in September 1993.”
Mr Dugan makes no further reference to counsel’s opinion but does say in par 10 that in the following month, September 1993, he commenced drafting the statement of claim. As the statement of claim made no reference to the valuation issue, there is a clear inference that counsel’s opinion supported the contents of the original statement of claim and that Mr Dugan found support for his earlier decision through counsel’s opinion. In my opinion, this is a waiver of legal professional privilege warranting disclosure of the documents referred to in pars 3, 4, 5 and 7 of the Schedule to the Dugan subpoenas. Those documents are:
“3.All documents containing a statement of or references to the consideration of Mr Dugan of the matters referred to in paragraph 7 of the Dugan affidavit.
4.All documents containing a statement of or reference(s) to the view and belief of Mr Dugan deposed to in paragraph 8 of the Dugan affidavit.
5. All documents comprising
(a) The briefs sent to counsel at the independent bar, and
(b) Counsel’s opinion obtained in September 1993,
referred to in paragraph 9 of the Dugan affidavit
6. ...
7.All documents containing a statement of or reference(s) to the belief of Mr Dugan deposed to in paragraphs 12 and 13 of the Dugan affidavit.”
The subpoenas also sought in par 6 production of all drafts of the pleadings prepared by Mr Dugan. In my opinion, that would be oppressive. The issue under consideration is the change in the applicant’s case and the reason for the change. It is not necessary or relevant to produce drafts for that purpose. Conversely, if there is such a necessity or if the documents sought are relevant, it did not become apparent during the course of argument. Paragraph 6 in each subpoena is therefore set aside.
In par 14 of the Dugan affidavit, Mr Dugan stated that he “formed the views” with respect to the “valuation” issue after discussions with other ASC employees and after conferring with external legal advisers. But he also said, in par 15 that he nevertheless believed that “it was desirable to obtain Mr Lonergan’s opinion” as to the values “out of an abundance of caution”. For reasons given earlier when considering the Bampton subpoenas, I do not consider that legal professional privilege has been waived so far as the affidavit relates to Mr Lonergan and his reports but I do believe that there has been a waiver by virtue of the stated reference to “external legal advisers”. Par 8 of the Schedules to the Dugan subpoenas deals with the formulation of Mr Dugan’s views and his discussions; it must therefore be answered; par 9 need not be as it deals with the Lonergan reports.
In pars 16 to 26 Mr Dugan deposes to his assessment of the respondents’ defences. He considered that they were, in different ways, raising the valuation issue. He said that he was awaiting further and better particulars of the defences and the supply of experts’ reports from the respondents. He alluded to the possibility of the applicant retaining another valuer but he concluded (par 26) that having read Mr Lonergan’s reports “it remained my view that this was a matter of reply”. In my view, the effect of this section of the Dugan affidavit is to reinforce his original reasons for preparing the statement of claim in its original form; it is the prelude to the change in direction. The respondents are entitled to challenge that change. However, to do that effectively they must be given the right to question the prelude. This means that pars 10 to 13 inclusive of the Schedule to the Dugan subpoenas must be answered.
Paragraphs 27 to 30 of the Dugan affidavit cover the period from the Full Court’s decision in the judicial review proceedings (in favour of ASC) on 28 August 1996 to the present. Mr Dugan expressed the belief that in due course the applicant would succeed in getting further and better particulars of the respondents’ defence. He claimed that until then, it would not be possible for the applicant to properly plead its reply on the “valuation” issue.
Central to this issue are the contents of pars 28 and 29 of the Dugan affidavit. In those paragraphs, the last vestiges of legal professional privilege are removed:
“28.Also between 28 August and 6 September 1996, I attended upon counsel, Mr Whitington QC. The purpose of the conferences was to discuss the structure and ultimately the detail of amendments to the reply contemplated by me as set out in the previous paragraph.
29.Mr Whitington QC provided me with certain recommendations on the question whether the matters I contemplated pleading in the amended reply be pleaded in the reply or in the statement of claim. This was the first time since the institution of the action that anyone discussed with me the possibility of pleading matters relating in any way to other value in the statement of claim rather than the reply, or that I gave consideration to doing so.”
As can be seen, the matter upon which the leave of the Court is now sought arose as a result of conferences with counsel and because of the advice of counsel. There is an immediate and direct reliance on counsel and his advice. The applicant cannot come to Court saying that it needs to amend its statement of claim as a result of counsel’s advice and then refuse to disclose that advice. That is a clear case of waiver and pars 14 to 19 of the Schedule to the Dugan subpoena must be answered.
There will be orders that the subpoenas be set aside in part in terms consistent with these reasons; the applicant is directed to bring into Court within 14 days short Minutes of Order reflecting the decision of the Court.
All questions relating to the costs of and incidental to the subpoenas are reserved for further consideration. They can be raised at the next directions hearing when the need for further argument can be addressed.
I certify that this and the preceding 34 pages are a true copy of the Reasons for Judgment of the Court.
Associate :
Dated :
Counsel for the applicants :Mr RJ Whitington QC and
Mr MF Blue
Solicitors for the applicants :Australian Securities
Commission
Counsel for the first respondent :Mr DMJ Bennett QC
Solicitors for the first respondent :Thomson Playfords
Counsel for the second and third respondents : :Mr AJ Besanko QC
Solicitors for the second and third respondents :Finlaysons
Counsel for the fourth and fifth respondents :Mr JLB Allsop SC
Solicitors for the fourth and fifth respondents : :Phillips Fox
Counsel for the sixth and seventh respondents :Mr N Hutley and Mr Roberts
Solicitors for the sixth and seventh respondents :Mallesons Stephen Jacques
Date of hearing :22 and 23 July 1997
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