Bell Group NV (In Liq) v Insurance Commission of Western Australia

[2018] WASCA 179

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BELL GROUP NV (IN LIQ) -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2018] WASCA 179

CORAM:   MAZZA JA

LE MIERE J

ALLANSON J

HEARD:   17 MAY 2018

DELIVERED          :   16 OCTOBER 2018

FILE NO/S:   CACV 31 of 2018

BETWEEN:   BELL GROUP NV (IN LIQ)

First Appellant

GARRY JOHN TREVOR as liquidator of BELL GROUP (IN LIQ)

Second Appellant

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA

First Respondent

ANTONY LESLIE JOHN WOODINGS as liquidator of THE BELL GROUP LTD (IN LIQ)

Second Respondent

THE BELL GROUP LTD (IN LIQ)

Third Respondent

ANTONY LESLIE JOHN WOODINGS as liquidator of BELL GROUP FINANCE PTY LTD (IN LIQ)

Fourth Respondent

BELL GROUP FINANCE PTY LTD (IN LIQ)

Fifth Respondent

ANTONY LESLIE JOHN WOODINGS as liquidator of BELL BROS PTY LTD (IN LIQ)

Sixth Respondent

BELL BROS PTY LTD (IN LIQ)

Seventh Respondent

ANTONY LESLIE JOHN WOODINGS as provisional liquidator for WESTERN INTERSTATE PTY LTD (IN PROVISIONAL LIQ)

Eighth Respondent

WESTERN INTERSTATE PTY LTD (IN PROVISIONAL LIQ)

Ninth Respondent

LAW DEBENTURE TRUST CORPORATION PLC

Tenth Respondent

COMMONWEALTH OF AUSTRALIA

Eleventh Respondent

WA GLENDINNING & ASSOCIATES

Twelfth Respondent

ON APPEAL FROM:

For File No:   CACV 31 of 2018

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   PRITCHARD J

Citation: INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- ANTONY LESLIE JOHN WOODINGS AS LIQUIDATOR OF THE BELL GROUP LTD (IN LIQ) [No 2] [2017] WASC 372

File Number             :   CIV 2666 of 2016

Catchwords:

Practice and procedure - Appeal from interlocutory decision in Commercial and Managed Cases List - Application to strike out writ and statement of facts, issues and contentions - Whether challenge to power to grant specified relief raises a question of jurisdiction that must be decided immediately - Whether plaintiffs' claim is hypothetical - Whether primary judge erred in not striking out particular prayers for relief and factual allegations

Legislation:

Corporations Act 2001 (Cth), s 553(1), s 564
Rules of the Supreme Court 1971 (WA), O 20 r 19
Supreme Court Act 1935 (WA), s 4

Result:

Leave to appeal granted
Appeal on ground 7 allowed
Appeal otherwise dismissed

Category:    B

Representation:

Counsel:

First Appellant	:	Mr A D'Arcy
Second Appellant	:	Mr A D'Arcy
First Respondent	:	Mr G K Rich SC & Mr D Sulan
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance
Sixth Respondent	:	No appearance
Seventh Respondent	:	No appearance
Eighth Respondent	:	No appearance
Ninth Respondent	:	No appearance
Tenth Respondent	:	No appearance
Eleventh Respondent	:	No appearance
Twelfth Respondent	:	No appearance

Solicitors:

First Appellant	:	Lipman Karas
Second Appellant	:	Lipman Karas
First Respondent	:	Jones Day
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance
Sixth Respondent	:	No appearance
Seventh Respondent	:	No appearance
Eighth Respondent	:	No appearance
Ninth Respondent	:	No appearance
Tenth Respondent	:	No appearance
Eleventh Respondent	:	No appearance
Twelfth Respondent	:	No appearance

Case(s) referred to in decision(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256

Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229

Bell Group NV (in liq) v Insurance Commission of Western Australia [No 2] [2017] WASC 372

Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [2018] WASC 44

Bray v Hoffman-La Roche Ltd [2003] FCAFC 153; (2002) 118 FCR 1.

CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339

CGU Insurance v Blakeley [2016] HCA 2 (2016) 327 ALR 564

Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC (No 2) [2017] WASC 61

Deputy Commissioner of Taxation v Currockbilly Pty Ltd [2002] NSWSC 1061 (2002) 172 FLR 99

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125

Girgis v Poliwka [2016] WASCA 158

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

In re Judiciary and Navigation Acts [1921] HCA 20, (1921) 29 CLR 257

Insurance Commission of Western Australia v Antony Leslie John Woodings as liquidator of The Bell Group Ltd (in liq) [No 3] [2018] WASC 44

Insurance Commission of Western Australia v Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [No 3] [2018] WASC 44

Insurance Commissioner of Western Australia v Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [No 2] [2017] WASC 372

Kuczborski v Queensland [2014] HCA 46 (2014) 254 CLR 51

Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109

Moore v Inglis (1976) 50 ALJR 589

Mustac v Medical Board of Western Australia [2007] WASCA 128

Palmer v Ayres [2017] HCA 5 (2017) 259 CLR 478

Pearce v International Mining Technologies Limited [2009] WASCA 239

Pearce v International Technologies Ltd [2009] WASCA 239

R v Carroll [2002] HCA 55; (2002) 213 CLR 635

Re Barrow [2017] HCA 47; (2017) 91 ALJR 1240

Re Nash [No 2] [2017] HCA 52

The Bell Group (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1

The Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 18 WAR 21

Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212

Tolcher v National Australia Bank [2004] NSWSC 6 (2004) 182 FLR 419

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

TP Engineering Pty Ltd v JM [2015] WASCA 181

Zhang v Zemin (2010) 79 NSWLR 513

MAZZA JA:

1. I have had the advantage of reading in advance the draft reasons of Le Miere and Allanson JJ, which describe the grounds of appeal and all of the necessary background.  I will not repeat what they have written, except to the extent necessary to explain my reasons.

2. I respectfully agree with their Honours, for the reasons they give, that grounds 1 ‑ 6 and 8 have not been made out.

3. However, I have reached a different conclusion to their Honours with respect to ground 7.  In my opinion, this ground does not sustain the grant of leave to appeal.

4. The decisions the subject of this appeal were interlocutory and concerned discretionary decisions in respect of matters of practice and procedure.  The action and a related proceeding,[1] are being case managed by Pritchard J in the Commercial and Managed Cases List (CMC List).  The action began in the High Court in 2016 and was remitted to the Supreme Court.  Her Honour has been actively case managing the action and the liquidator's application since that time.  Her Honour, more than this court, has a better overall perspective of the entire litigation and of the issues and facts in dispute.

   [1] COR 146 of 2014, known as the liquidator's application.

5. It is undeniable that the litigation, and this action in particular, is extremely large and complex.  As an illustration of this, the first respondent's statement of issues, facts and contentions (SIFC), filed 28 February 2018, comprises over 1,100 paragraphs and is 294 pages long, not including the schedules.  I do not think that anyone would cavil with the suggestion that the action has already yielded considerable interlocutory dispute, and has the potential to do so in the future.  There is a very large sum of money at stake ($1.8 billion) which, with interest, gets larger by the day.  The parties to this appeal could be said to have a litigious disposition and appear to have deep pockets, such that legal costs, including the possibility of costs orders, constitute no real restraint. 

6. Appellate courts have repeatedly expressed great reluctance to interfere with decisions of practice and procedure such as those with which this appeal is concerned.  This reluctance applies with even greater force where the appeal is brought from a decision of a judge who is actively case managing proceedings in the CMC List.

7. In Pearce v International Mining Technologies Limited,[2] Pullin and Newnes JJA expressed the general principles relevant to this appeal in the context of a matter in the CMC List as follows:[3]

   Where an appeal is from an interlocutory decision, an appellant must generally show that the decision was wrong, or attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice be done by leaving the decision unreversed:  Wilson v Metaxas [1989] WAR 285, 294; The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 57.

   In addition, an appellate court will exercise particular caution in reviewing a decision which (as in this case) involves the exercise of discretion on a matter of practice and procedure.  In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177, the High Court adopted the following statement of Jordan CJ in Re the Will of FB Gilbert (Dec) (1946) 46 SR (NSW) 318, regarding the approach to interlocutory appeals:

   '… I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in Chambers to a Court of Appeal (323).'

   Such appellate restraint has particular force in the present case where the appeal is brought from a procedural decision of the judge who has the management of the case in the Commercial and Managed Cases List (CMC List).  Cases will generally be admitted to the CMC List where, by reason of their size, complexity or propensity for interlocutory dispute, they require more intensive management by a judge.  The object of the CMC List is to ensure that such cases are managed, and that in each case the interlocutory processes of the court are tailored, to achieve a just outcome in the quickest and most cost‑effective way.  It is for that reason that cases in the CMC List are managed on a 'docket' system; that is, each case is assigned to a particular judge who is to manage the case throughout the interlocutory process and who will generally be the trial judge. 

   A judge who has a continuing involvement in the management of a case in the CMC List is likely to have a much better overall perspective of the litigation, and to be in a much better position to determine what particular procedural steps are appropriate, than this court.  The advantage that such a judge will generally have from his or her familiarity with the case is not lightly to be put aside.  While this court must be prepared to intervene where questions of legal principle arise or the interests of justice otherwise require it, restraint is necessary to avoid the appellate process becoming an obstacle to the proper and effective management of cases in the CMC List.

   [2] Pearce v International Mining Technologies Limited [2009] WASCA 239.

   [3] Pearce [23] - [26]; see also TP Engineering Pty Ltd v JM [2015] WASCA 181 [49].

8. There is, in my opinion, a further reason for appellate restraint in this case.  Because of the nature of the proceedings, the number of issues to be decided and the complexity of those issues, her Honour decided that the matters before her proceed on the basis of SFICs filed by the parties.  Her Honour regarded this as 'the most efficacious way' of bringing the matters to trial.[4]

   [4] Insurance Commissioner of Western Australia v Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [No 2] [2017] WASC 372 [14].

9. While I accept that an SFIC is a pleading and subject to amendment, in accordance with O 21 RSC, and strike out, in accordance with O 20 RSC, it is plainly a less formal way of proceeding than conventional formal pleadings and should be viewed for the purpose of amendment and strike out in that way.

Ground 7

1. Ground 7 concerns her Honour's decision not to strike out par 1097B of the SIFC.  The paragraph is set out in [83] of the joint reasons of Le Miere and Allanson JJ.  In her Honour's reasons,[5] she dealt with the appellant's claim that this paragraph of the SIFC should be struck out in the context of other paragraphs in the SIFC, namely pars 978A, 1097A and 1098A.  Her Honour described these and par 1097B as the WI challenged amendments.  I, too, will refer to them by that expression.

   [5] Insurance Commission of Western Australia v Antony Leslie John Woodings as liquidator of The Bell Group Ltd (in liq) [No 3] [2018] WASC 44 [15] ‑ [28].

2. Her Honour found, inter alia, that the WI challenged amendments may be relevant to the respondent's arguments concerning the proper construction of the WI agreements, although the extent to which they became relevant would be a matter for submissions later.  In respect of par 1097B, her Honour rejected the contention put to her by the appellant that the amendment, unless struck out, would require the court to embark upon an unnecessary investigation into the conduct of the main Bell Litigation.[6]

   [6] Insurance Commission of Western Australia v Antony Leslie John Woodings as Liquidator of the Bell Group Ltd (in liq) [No 3] [2018] WASC 44 [23], [26], with the main Bell litigation, referring to The Bell Group (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 (Owen J).

3. In this appeal, the appellant submitted that her Honour erred in failing to find that par 1097B was irrelevant.  It was submitted that the paragraph could not be relevant to the proper construction of the WI agreements because the matters alleged that it post‑dated the making of those agreements.[7]

   [7] WAB 77 ‑ 78.

4. The appellant further submitted that her Honour erred in finding that the matters in par 1097B would not delay the trial of the action.  It was submitted that by its terms, par 1097B required an investigation into the conduct of the main Bell Litigation from 2000 to 2008.[8]

   [8] WAB 78.

5. In his oral submissions, senior counsel for the respondent, speaking of the WI challenged amendments, accepted (correctly, in my view) that some of the matters pleaded in them constituted post‑contractual conduct, which could not be relied upon to construe the WI agreements.[9]  However, senior counsel put their relevance in these terms:[10]

   RICH, MR:  - - - … because they tell the court why anybody should care about rights to receive distributions from Western Interstate.  If your Honours just posit a situation in which the pleading sought declarations about distributions - the divvy‑up of distributions to shareholders of Western Interstate would ever get any money, or how, or why.

   The court might be wondering, 'What is the utility of this relief?  Why is it here?  Why - am I being asked to give some kind of advisory opinion about the proper construction of agreement that will never come into effect?'  Well, the answer is no, because the facts are that a proof of debt was lodged for over $750 million and for - at least, for ‑ on the casse that's put - for several years.  All of the parties in the bank litigation, on our side of the table, anyway, proceeded on the basis, and, indeed, contended that was a debtor/creditor relationship.

   In other words, there's a genuine issue here requiring or justifying the prayers for relief which we seek, because if the reality was, your Honour, that Western Interstate - no way known it would ever

receive any significant money, well, then these prayers for relief would be completely pointless, and we wasted everybody's time.  So they tell the court that there is utility in this, and this is why we want an answer.

[9] Appeal ts 53.

[10] Appeal ts 53 ‑ 54.

1. My impression is that the claimed relevance is somewhat thin.  However, her Honour is better placed than I am to judge this question, having regard to her Honour's greater familiarity with the action.  In such circumstances, I am unwilling to conclude that any of the WI challenged amendments, including par 1097B, are irrelevant. 

2. Further, I am unable to see how her Honour erred in concluding that the WI challenged amendments, including par 1097B, would be likely to delay the fair trial of this action.  As with the question of relevance, this is a matter which her Honour is much better positioned to judge than I am.  My impression is that the appellant's assertion that if par 1097B remained in the SIFC it would be necessary to undertake an investigation which, by implication, would take up unnecessary time, is overstated.  Having regard to the text of par 1097B, it appears that what would be required is an examination of the relevant parts of the pleadings, particulars and the judgment in the main Bell Litigation.  That is unlikely to significantly affect the fair trial of this action.

3. Further, having rejected grounds 1 ‑ 6 and 8, I do not think it would be appropriate to grant leave to appeal, where in the end the application boils down to a challenge on the grounds of relevance to one paragraph in a SIFC of the magnitude I have described.  To grant leave would, in my view, allow the appellate process to obstruct the timely, efficient and just resolution of this already protracted dispute.

4. I have not been persuaded that her Honour erred by failing to strike out par 1097B of the SIFC.  No substantial injustice would be done to the appellant if the paragraph remained in the SIFC.  This court should not intervene.  Leave to appeal should be refused. 

LE MIERE & ALLANSON JJ:

Introduction

1. In this application, Bell Group NV (in liq) (BGNV) (the tenth defendant in the primary action) and the liquidator as second appellant (ninth defendant in the primary action), seek leave to appeal from part of the decision of the primary judge on their application to strike out

part of the writ of summons and pleadings in the claim.  In these reasons, we refer to the appellants, collectively, as BGNV.

1. BGNV applied to strike out 16 of the 29 prayers for relief in the writ and related paragraphs in the statement of facts, issues and contentions filed by the Insurance Commission of Western Australia (ICWA) (plaintiff in the action).[11]

   [11] The prayers for relief in the writ are referred to by her Honour as PFR 1 to PFR 29.  In these reasons I follow that practice, and use the abbreviation SFIC for the statement of facts, issues and contentions.  Other than identifying the parties by their initials, in these reasons I generally avoid using the many abbreviations which the parties and the primary judge use for convenience, but which are less convenient for those not steeped in this action.

2. The procedural history of the application is complicated.  The strike out application was heard in March 2017.  Judgment was delayed awaiting the decision of the Court of Appeal in another interlocutory appeal by BGNV.  Before that appeal was heard, ICWA applied to amend the writ and SFIC in terms of a minute dated 8 May 2017.  Following the decision of the Court of Appeal in December 2017,[12]  ICWA filed a further minute of proposed amendments to both the writ and the SFIC.  The primary judge made further orders on 22 December 2017.  The effect of those orders was that the amendment application was to be understood as an application for leave to amend in the terms set out in minutes dated 19 January 2018. 

   [12] Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229.

1. The primary judge delivered reasons on 1 February 2018[13] and further reasons on 9 February 2018.[14]  The writ and SFIC were then amended in accordance with her Honour's rulings.  At the appeal, the parties agreed that the version of the PFR and the SFIC for consideration was that dated 28 February 2018 which followed from both of her Honour's judgments.

   [13] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 2] [2017] WASC 372.

   [14] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [2018] WASC 44.

2. The primary judge ordered that PFR 12 and the corresponding paragraphs of the SFIC be struck out, but otherwise dismissed the application.  In this appeal BGNV challenges her Honour's findings on:

   (1)PFR 5, 9, 11, and 29, and identified paragraphs in the SFIC relating to those PFR; and

   (2)a group of paragraphs said to be irrelevant to the relief sought in PFR 23 to 29, and that BGNV contends are likely to prejudice, embarrass or delay the fair trial of the action.

   BGNV applied for other relief, including summary judgment on part of the claim.  Her Honour's decision on those parts of the application is not challenged.

3. The application by BGNV proceeded on the basis that the SFIC is subject to strike out pursuant to O 20 r 19. BGNV relied on the grounds in O 20 r 19(1)(a), (c) and (d) of the Rules of the Supreme Court 1971 (WA):

   The Court may at any stage of the proceedings … order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that

   (a)it discloses no reasonable cause of action or defence, as the case may be; or

   (b)…

   (c)it may prejudice, embarrass or delay the fair trial of the action; or

   (d)it is otherwise an abuse of the process of the Court,

   and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

4. A SFIC is a pleading as defined in the Supreme Court Act 1935 (WA), and subject to strike out under O 20 r 19.[15]  But in applying those rules, in our opinion, the court should take into account the nature of the document, the considerations that led the primary judge to proceed by SFIC rather than traditional pleadings, and also case management considerations relating to the management of an action of this size and complexity together with the proceedings brought by the liquidators of The Bell Group Ltd and Bell Group Finance (the Liquidator's Application).[16] In the Liquidator's Application, the liquidator applies for orders pursuant to s 564 of the Corporations Law[17], including orders as to how they are to apply amounts recovered in the liquidation of The Bell Group Ltd and Bell Group Finance.[18]  The decision to proceed by SFIC was made to address the number and complexity of the issues, and the potential and actual overlap between this action and the Liquidator's Application.[19] 

   [15] See Supreme Court Act 1935 (WA) s 4, where pleading is defined to include 'the statements in writing of the claim or demand of the plaintiff, and of the defence of any defendant thereto'.

   [16] COR 146 of 2014.

   [17] As applied by the Corporations Act 2001 (Cth).

   [18] Section 564 provided:

   [19] Primary reasons at [14].

5. The extent of overlap is illustrated by the summary given by the primary judge of the relief sought in the action.

   In the present action, ICWA seeks declaratory and other relief in respect of a wide range of issues which it says will be relevant to the Court's ultimate exercise of discretion under s 564 in the Liquidator's Application. … [T]he Writ seeks 29 different PFRs.  By way of a general overview of the nature of the issues raised, it suffices to note that the relief ICWA seeks includes the following:

   •a declaration that for the purposes of s 564, ICWA is a creditor of BGF, and that the Proceeds were recovered by the liquidator under indemnities given by ICWA for the liquidator's costs of litigation or expenses (so that the Court would be able to make an order under s 564 in favour of ICWA);[20]

   [20] PFR 1.

   •a declaration that pursuant to s 564 the Court may make an order in favour of a creditor which has paid money or indemnified a liquidator for the costs of litigation or expenses, which has resulted in property being recovered, protected or preserved, and which order pertains to the payment of money to the creditor by the liquidator, BGF or TBGL, in a way that is not limited by reference to the amount of money due to that creditor in its capacity as a creditor, and which will not alter the priority of that creditor in the winding up of TBGL or BGF; and which will not reduce the amount for which that creditor's claim may be admitted to proof in the liquidation; or which will not reduce the principal amount for which that creditor's claim may be admitted to proof but may reduce the amount of post liquidation interest otherwise payable to that creditor;[21]

   [21] PFR 2.

   •a declaration that for the purposes of s 564, ICWA is a creditor of BGNV;[22]

   [22] PFR 5.

   •declarations in relation to the proper construction of agreements known as the TBGL AFI[23] and the BGF AFI[24] (collectively, the AFIs) and the PTICA,[25] namely that on the proper construction of those agreements, the liquidator is not precluded from repaying, and ICWA would not be in breach of those agreements if it encouraged the liquidator to repay, funds which were advanced to the liquidator in accordance with the AFIs, or costs and expenses properly incurred by the liquidator in relation to the winding up of TBGL and BGF, prior to the determination of the Liquidator's Application;[26]

   [23] Agreement for Indemnification dated 6 April 1995, as amended, between the liquidator, the Commonwealth, the LDTC (TBGL), BGNV and ICWA.

   [24] Agreement for Indemnification dated 6 April 1995, as amended, between the liquidator, the Commonwealth, the LDTC (BGF), BGNV and ICWA.

   [25] Agreement for Indemnification and Post Termination Inter-Creditor Agreement between the Commonwealth, ICWA, the liquidator of BGNV dated 23 September 1999, as amended.

   [26] PFR s 21 and s 22.

   •a declaration that ICWA may seek an order pursuant to s 564, in advance of the determination of the Liquidator's Application, without breaching any obligation under the AFIs or the PTICA;[27]

   [27] PFR 4.

   •various declarations (as discussed below) in relation to the operation of specified clauses of trust deeds of which trusts the LDTC is the trustee (known as the TBGL Trust Deed and the BGF Trust Deed) relating to bonds issued by TBGL and BGF and held by ICWA, which clauses are said to constitute subordination and turnover trust clauses in respect of particular amounts, for the benefit of unsubordinated creditors of TBGL and BGF (I will refer to these clauses as the subordination and turnover trust clauses);

   •declarations that any monies paid to the LDTC or ICWA by the liquidator pursuant to s 564 are not subject to the subordination and turnover trust clauses;[28]

   [28] PFRs 6, 7, 8 and 10.

   •an order pursuant to s 564 that the liquidator of BGNV pay to ICWA, out of any proceeds connected with debts owed by TBGL or BGF to BGNV, an amount equal to the aggregate of any monies received or receivable by him from BGF, TBGL, the liquidator, or the LDTC, pursuant to the operation of the subordination and turnover trust clauses, in priority to any other amount payable in the liquidation of BGNV;[29]

   •a declaration that the TBGL Trust Deed and the BGF Trust Deed may be amended by the LDTC (in its capacity as the trustee of those Trusts) with the consent of ICWA;[30] and a declaration that BGNV may not bring any action against ICWA, TBGL, BGF, the liquidator, or the LDTC to resist the amendment of those Trust Deeds, and may not oppose any application for TBGL, BGF, the liquidator or the LDTC to be released from certain undertakings, given in other proceedings in this Court, not to seek to amend those Trust Deeds;[31]

   •declarations in relation to the construction of the PTICA, including declarations that any monies which are payable to BGNV by TBGL, BGF or the liquidator, or by ICWA or the LDTC, pursuant to an order by the Court made under s 564, are required to be dealt with by BGNV in accordance with certain clauses of the PTICA;[32]

   •declarations that any monies paid to ICWA by the liquidator pursuant to s 564, and which may be subject to the subordination and turnover trust clauses, are not required to be dealt with by ICWA in accordance with certain clauses of the PTICA;[33]

   •alternatively, if the construction and operation of the PTICA and the parties' obligations under the PTICA are otherwise than as contended by ICWA, an order that the PTICA be rectified to reflect the terms of the agreement ICWA contends was reached between the parties to the PTICA;[34]

   •alternatively, if BGNV's obligations under the PTICA are otherwise than as contended by ICWA, orders that BGNV pay damages to ICWA for loss or damage ICWA claims to have suffered as a result of the contravention by BGNV of s 52 of the Trade Practices Act 1974 (Cth) or s 10 of the Fair Trading Act 1987 (WA) by reason of alleged misleading and deceptive conduct by BGNV in its negotiation of the PTICA;[35]

   •declarations in relation to the construction and operation of agreements known as the Western Interstate Assignment Agreement (WIAA) and the Western Interstate Inter‑Creditor Agreement (WIICA) including declarations that BGNV is a 'Terminating Indemnifier' for the purposes of the WIAA and the WIICA;[36] that upon becoming a Terminating Indemnifier, BGNV ceased to have any interest in or claim to 57,000 ordinary shares in Western Interstate Pty Ltd (in prov liq) (Western Interstate) which were the subject of the WIAA;[37] declarations that Bell Bros Pty Ltd (in liq) (Bell Bros) is obliged to transfer those 57,000 shares to the liquidator of BGF;[38] that the liquidator is obliged to receive those shares;[39] and that upon that transfer BGF will hold those shares on trust for ICWA and the Commonwealth;[40] and that ICWA and the Commonwealth are the sole beneficial owners of those shares;[41] and a declaration that any distribution by Western Interstate to ICWA and the Commonwealth, with respect to those shares, is not subject to certain clauses of the WIICA or the PTICA.[42]

   ICWA does not seek an order from the Court pursuant to s 564 in relation to the winding up of BGF or TBGL.  As I have already observed, ICWA considers that some of the issues raised in the present action are relevant or antecedent to the exercise of the Court's discretion under s 564.  By way of example, the relief sought in respect of the shares in Western Interstate is considered relevant to the determination of the assets of BGF which will ultimately be available for distribution in the liquidation of BGF.  The relief sought appears to be intended to deal with a contention, actual or anticipated, that BGNV has an interest in those shares. 

   Other issues and relief sought, as I presently understand them, are intended to deal with contentions, actual or anticipated, that ICWA is not entitled to advance certain arguments in the Liquidator's Application, or that the liquidator would not be able to take certain action prior to the determination of the Liquidator's Application (such as the repayment of funds advanced, or expenses paid, by any indemnifying creditors).  Other issues raised and relief sought will, or may, bear upon the exercise of the Court's discretion under s 564 in the Liquidator's Application (for example, that ICWA is a creditor of BGF for the purposes of that application, and that the Proceeds were recovered, or protected, by virtue of the indemnity given by ICWA for the costs of the liquidator).[43]

   [29] PFRs 9 and 11.

   [30] PFR 12.

   [31] PFR 13.

   [32] PFRs 14, 15, 16.

   [33] PFRs 17 and 20.

   [34] PFR 18.

   [35] PFR 19.

   [36] PFR 23.

   [37] PFR 24.

   [38] PFR 25.

   [39] PFR 26.

   [40] PFR 27.

   [41] PFR 28.

   [42] PFR 29.

   [43] Insurance Commission of Western Australia v Antony Leslie Woodings as Liquidator of The Bell Group Ltd (in liq) [No 2] [2017] WASC 372 [11] - [13].

The application for leave to appeal

1. BGNV seeks leave to appeal on eight grounds, with several of the grounds containing more than one complaint.  The first four grounds relate to PFR 5, 9 and 11; grounds 5 and 6 to pars 978A, 1090‑1103 and 1108A of the SFIC; ground 7 to par 1097B of the SFIC; and ground 8 to PFR 29 and corresponding pars 1086 to 1142 of the SFIC.

2. The principles applying to this application are well settled.  First, the decision under review was made in the exercise of a discretion in a matter of practice or procedure.  An appeal court should limit its intervention to cases where it is shown that the primary decision maker has fallen into some error of principle in the exercise of their discretion.  Second, the remedy of summary disposal of a claim by the striking out of the statement of claim, in whole or in part, is to be used with caution and only in the clearest of cases.  The application of these principles in appeals from interlocutory procedural decisions in the CMC List was considered by the Court of Appeal in Girgis v Poliwka, where the court said:[44]

   It is well established that before leave will be granted to appeal from an interlocutory decision the applicant for leave will generally need to show that the decision appealed against is wrong or at least arguably attended with sufficient doubt to support the grant of leave to appeal, and also that a substantial injustice would be done if leave to appeal was not granted and the interlocutory decision was not reversed. It is also well established by decisions of the highest authority that a tight rein must be kept upon interference with the orders of judges at first instance, exercising discretions with respect to points of practice or procedure. In this court it is also established that there is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the commercial and managed cases list. The reasons for that restraint are explained by the court in Pearce v International Mining Technologies Ltd[45] in these terms:

   'A judge who has a continuing involvement in the management of a case in the CMC List is likely to have a much better overall perspective of the litigation, and to be in a much better position to determine what particular procedural steps are appropriate, than this court.  The advantage that such a judge will generally have from his or her familiarity with the case is not lightly to be put aside.  While this court must be prepared to intervene where questions of legal principle arise or the interests of justice otherwise require it, restraint is necessary to avoid the appellate process becoming an obstacle to the proper and effective management of cases in the CMC List.'

   [44] Girgis v Poliwka [2016] WASCA 158 [1] (citation omitted).

   [45] Pearce v International Technologies Ltd [2009] WASCA 239 [26].

The challenged PFR and paragraphs in the SFIC

PFR 5, 9 and 11

1. The relief ICWA claims in its writ includes:

   Further or alternatively to paragraphs 6, 7, 8 and/or 10 below, a declaration in the Court's inherent jurisdiction that for the purposes of section 564 Corporations Act 2001 (Cth) and/or Corporations Law, ICWA is a creditor of BGNV as that term is used in in section 564.

   Alternatively to paragraphs 6 and/or 8 above, an order pursuant to section 564 of the Corporations Act 2001 (Cth) and/or the Corporations Law that the liquidator of BGNV pay or cause to be paid to ICWA, from the proceeds of, resulting from or connected with any debts owed by TBGL and BGF to BGNV, an amount equal to the aggregate amount of money received or receivable by him as liquidator of BGNV from:

   a.Bell Group Finance

   b.the liquidator of Bell Group Finance

   c.The Bell Group Ltd

   d.the liquidator of The Bell Group Ltd; and/or

   e.Law Debenture Trust Corporation (Bell Group Finance)

   pursuant to and/or as a consequence of the operation of Clause 5 or Subclause 9(C) of the Bell Group Finance Trust Deed with respect to monies ordered by the Court to be paid by Bell Group Finance or its liquidator, or The Bell Group Ltd or its liquidator, to Law Debenture Trust Corporation (Bell Group Finance) or ICWA pursuant to section 564 (as contemplated by subclause 7.1(e)(i) of the AFIs) in priority to any other amount payable in the liquidation of BGNV pursuant to section 556 of the Corporations Act 2001 (Cth) and/or the Corporations Law or otherwise.

   Alternatively to paragraphs 7 and 10 above, an order pursuant to section 564 of the Corporations Act 2001 (Cth) and/or the Corporations Law that the liquidator of BGNV pay or cause to be paid to ICWA, from the proceeds of, resulting from or connected with any debts owed by TBGL and BGF to BGNV, an amount equal to the aggregate amount of money received or receivable by him as liquidator of BGNV from:

   a.The Bell Group Ltd

   b.the liquidator of The Bell Group Ltd; and/or

   c.Law Debenture Trust Corporation (The Bell Group Ltd)

   pursuant to and/or as a consequence of the operation of Clause 5 or Subclause 9(C) of the The Bell Group Ltd Trust Deed with respect to monies ordered by the Court to be paid by The Bell Group Ltd or its liquidator, to Law Debenture Trust Corporation (The Bell Group Ltd) or ICWA pursuant to section 564 (as contemplated by subclause 7.1(e)(i) of the AFIs) in priority to any other amount payable in the liquidation of BGNV pursuant to section 556 of the Corporations Act 2001 (Cth) and/or the Corporations Law or otherwise.[46]

   [46] Amended writ of summons, 28 February 2018, Blue Appeal Book 847 ‑ 848.

1. The orders sought in PFR 5, 9 and 11 are in the alternative to PFR 6, 7, 8 and 10, which seek declarations as to the construction and operation of subordination and turnover trust clauses in the Bell Group Finance Trust Deed and The Bell Group Ltd Trust Deed, and whether monies paid to ICWA or the Law Debenture Trust Corporation pursuant to s 564 in the Liquidator's Application would be subject to those clauses.

2. The primary judge summarised the facts and contentions advanced by ICWA in support of PFR 5, 9, and 11, and its submission about how s 564 applies in the winding up of BGNV.[47]  Her Honour then identified two arguments advanced by BGNV to support its challenge to those paragraphs: that ICWA's claim is hypothetical, and that the court does not presently have jurisdiction to deal with the claim. 

   [47] Primary decision [88] - [96].

Grounds 1 and 2

1. Grounds 1 and 2 contend that the primary judge should have found that the court had no jurisdiction to determine the claims in PFR 5, 9 and 11.

2. Her Honour said:

   The question for the purposes of the strike out application, in so far as it concerns the Court's jurisdiction, is whether ICWA's claim ‑ that the Court has jurisdiction to grant the relief sought in PFRs 5, 9 and 11 ‑ is so clearly untenable that it cannot succeed. 

   The cases to which I have referred, and the parties' submissions, demonstrate that the operation of s 564 is far from settled.  The question raised by BGNV's submissions is whether the Court's jurisdiction to deal with an application under s 564 is dependent upon the existence of funds for distribution in the winding up at the point in time the application under s 564 is made.  The cases to which the parties referred do not establish that that is what is required. 

   The factual context for the decision of Templeman J in the TBGL case was very different from this case.  His Honour was asked to make a s 564 order prior to the determination (in separate proceedings) of litigation which would determine whether monies were actually recovered by the liquidator.  In the present case, as I understand ICWA's case, it is contended that the debt owed by TBGL and BGF to BGNV was protected or preserved by the indemnity given by ICWA to BGNV's liquidator, that that 'property' was recovered as a result of that indemnity, and that that property is available for distribution in the winding up of TBGL and BGF, including to BGNV. 

   In this case, the relief sought in PFRs 5, 9 and 11 is sought only in the alternative to other relief.  If the grant of the relief in PFRs 5, 9 and 11 in fact arises for determination at trial, it will arise in circumstances where the Court will have determined that funds are to be paid to BGNV's liquidator.  At that stage, there will be no doubt that BGNV's liquidator will have funds available for distribution in the winding up of BGNV.  The question then will be whether those funds constitute 'property' or 'expenses' of the kind described in s 564(a) or (b) in the winding up of BGNV, and in respect of which an order under that section may be made, if the Court is satisfied that it is just to do so.  The Court would clearly have jurisdiction to deal with that question at that stage. 

   In my view it would be inappropriate to strike out the PFRs at this stage on the basis that ICWA's claims (including as to the existence of the Court's jurisdiction) are untenable.  Whether the Court has jurisdiction, and whether there exists a basis for granting the relief sought in PFRs 5, 9 and 11 will warrant further, and detailed, consideration at the trial of the action.

   No different basis was advanced by BGNV for its contention that PFRs 5, 9 and 11 disclose no reasonable cause of action, may prejudice, embarrass or delay the fair trial of the action, or are otherwise an abuse of the process of the Court. 

1. Ground 1 alleges:

   The primary judge acted upon a wrong principle and thereby erred in law in the approach she took to determining the appellants' (BGNV) challenge to the Court's jurisdiction to deal with the claims made in PFR 5, 9 and 11 in that her Honour applied the test for determining whether a pleading should be struck out for not disclosing a reasonable cause of action. This was not the correct test to apply to determine if the Court had jurisdiction to determine the claim.  As a result, the primary judge asked herself the wrong question and did not decide, as she should have done, whether the Court had jurisdiction to determine PFR 5, 9 and 11.

2. Ground 2 alleges:

   The primary judge acted upon a wrong principle and thereby erred in law in not striking out PFR 5, 9 and 11 on the ground that the Court did not have jurisdiction to grant the relief sought in that her Honour misunderstood the case advanced by ICWA and misapplied the law.  Her Honour should have followed, but did not, the decision of Templeman J in The Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 18 WAR 21 and found that there was no property presently in existence and available for distribution in the winding up of BGNV, with the result that the Court did not have jurisdiction to entertain the claims for relief in PFR 5, 9 and 11. As the Court did not have jurisdiction to determine those claims they should have been struck out as an abuse of process.

3. In particulars to ground 1, BGNV contends that the primary judge's 'first duty' was to determine the challenge to the jurisdiction of the court to entertain the claims in these PFR.  That contention was repeated in BGNV's written submissions, citing Re Nash [No 2],[48] Agar v Hyde,[49] and an earlier decision by her Honour in Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC (No 2).[50] 

   [48] Re Nash [No 2] [2017] HCA 52 [16].

   [49] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57].

   [50] Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC (No 2) [2017] WASC 61.

4. In considering whether the primary judge was required to first determine the question of jurisdiction, it is important to identify the sense in which that term is used.  It is well settled that there is a distinction between jurisdiction, in the sense of authority to adjudicate, and the specific power to grant particular remedies; 'The existence of jurisdiction is anterior to the existence of the power to grant particular relief'.[51]

   [51] CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339 [25], [31].

5. In all but one of the cases referred to by the applicant in support of its submission, the question of jurisdiction had to be answered before the court could be satisfied it had authority to adjudicate:  had statutory jurisdiction been conferred on the court to decide the dispute;[52] had the jurisdiction of the court been properly invoked against the defendant by valid service;[53] was the matter in the exclusive jurisdiction of the High Court;[54] is the party immune from the jurisdiction of the courts of Australia under the Foreign State Immunities Act 1985 (Cth);[55] did an appeal lie to the Court of Appeal against the primary judge's order.[56]  

   [52] Re Nash [No 2].

   [53] Agar v Hyde.

   [54] Commonwealth Bank of Australia v The Law Debenture Trust Corporation PLC (No 2).

   [55] Zhang v Zemin (2010) 79 NSWLR 513.

   [56] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

6. BGNV also relied on the comments of Finkelstein J in Bray v Hoffman‑La Roche Ltd[57] where his Honour said:

   If a query about jurisdiction is raised, or if it is identified by the court, the court must satisfy itself that it has jurisdiction before it proceeds any further with the matter.[58] 

   In the immediately preceding paragraphs, his Honour discussed the distinction between jurisdiction, in the sense of the power of the court to deal with and decide the claim, and the matters which a litigant must establish to make out that part of its claim. In the comment quoted, Finkelstein J was addressing a question of jurisdiction in the former sense.[59]

   [57] Bray v Hoffman-La Roche Ltd [2003] FCAFC 153; (2002) 118 FCR 1.

   [58] Bray v Hoffman-La Roche Ltd [239].

   [59] See Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 [6] (Branson J).

7. There is no question in this case that the court has authority to adjudicate the claim between ICWA and BGNV. The contention of BGNV is that the court cannot grant the particular alternative remedy sought by ICWA in PFR 5, 9 and 11.  We can see no error in the primary judge identifying the appropriate question or test in the strike out application as whether the claim in the challenged PFRs was not clearly untenable.  It is not an issue of jurisdiction.

8. Whether the challenge by BGNV to the court's power to grant the alternative relief sought should be heard immediately, or dealt with at trial, is not merely a discretionary decision, but one concerned with case management.  As the court explained in Girgis v Poliwka,[60] there is particular need for restraint on appeal in such matters.[61]  BGNV has not shown that the approach adopted by the primary judge was wrong.  We would not uphold ground 1.

   [60] Girgis v Poliwka [2016] WASCA 158.

   [61] More generally, particular caution is required in appellate intervention in matters of practice and procedure where no questions of general principle are at stake:  Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [53].

9. There are several aspects to ground 2, in the body of the ground and in what are styled 'particulars'.

10. BGNV has not established its contention in ground 2 that the primary judge misunderstood ICWA's case.  It is true that, referring to part of ICWA's written submissions, her Honour referred to ICWA's case that the 'property' which was protected and preserved, by virtue of its payment of money or its indemnity to BGNV's liquidator, was the debt owed by TBGL and by BGF to BGNV.[62]  When dealing in greater detail with BGNV's contention that the court does not have jurisdiction to deal with ICWA's claims, her Honour referred more fully to ICWA's written submissions that the debt owed to BGNV had been admitted in the winding up of each of The Bell Group Ltd and Bell Group Finance and was property in existence, and that the proceeds of, resulting from or connected with that property were susceptible to an order under s 564.[63]  Her Honour also quoted from ICWA's further submission that the amount turned over to senior creditors in COR 146 of 2014 'serves as a means of valuing the amount that is just to be distributed to ICWA'. [64]

    [62] Primary reasons [93].

    [63] Primary reasons [124]; ICWA's written submissions at [99] to [102].

    [64] Primary reasons [125], see also at [129].

11. The four paragraphs of 'particulars' to ground 2 in many respects resemble a submission.  The substance of BGNV's claim is that the court only has power to grant the relief claimed in PFR 5, 9 and 11 in relation to property that exists at the time the application was made.  In particular, BGNV contends that the primary judge should have followed the decision in The Bell Group Ltd (in liq) v Westpac Banking Corporation[65] unless she found that it was plainly wrong, and should have concluded that there was no basis for ICWA's contention that there was property available for distribution in the winding up of BGNV.

    [65] The Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 18 WAR 21.

12. Ground 2 thus raises a question of judicial comity. 

13. A court at first instance must follow binding authority.  It is not suggested that the primary judge was bound by authority on this question relating to the proper construction and application of s 564.  Where there is no binding authority, the practice of the courts is that a judge of first instance will, as a matter of judicial comity, usually follow the decision of another judge of coordinate jurisdiction unless convinced that the decision is wrong.[66]  

    [66] See Mustac v Medical Board of Western Australia [2007] WASCA 128 [38].

14. In the present case, the primary judge had regard to several factors.  First, having regard to two later decisions:  Deputy Commissioner of Taxation v Currockbilly Pty Ltd,[67] and Tolcher v National Australia Bank,[68] the operation of s 564 was 'far from settled'.[69]  Second, the factual context was different from that considered by Templeman J, where the court was asked to make an order under s 564 before the determination (in separate proceedings) of litigation which would determine whether monies were actually recovered by the liquidator.[70]  Third, the relief was sought in the alternative to the relief in PFR 6, 7, 8, and 10 and, should it arise at trial, would do so in circumstances where the court had determined that funds have been paid to the liquidator of BGNV.[71]

    [67] Deputy Commissioner of Taxation v Currockbilly Pty Ltd [2002] NSWSC 1061; (2002) 172 FLR 99.

    [68] Tolcher v National Australia Bank [2004] NSWSC 6; (2004) 182 FLR 419.

    [69] Primary reasons [127].

    [70] Primary reasons [128].

    [71] Primary reasons [129].

15. In Agar v Hyde,[72] Gaudron, McHugh, Gummow and Hayne JJ said:

    Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

    [72] Agar v Hyde [2000] HCA 41 [57]; (2000) 201 CLR 552; citing Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91, General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, 130.

16. The primary judge was not required to determine whether the decision of Templeman J was plainly wrong.   Her Honour was not required to, and did not purport to, arrive at a concluded view as to the ultimate merits of the pleaded claim.  Her Honour held that '[w]hether the Court has jurisdiction, and whether there exists a basis for granting the relief sought in PFRs 5, 9 and 11 will warrant further, and detailed, consideration at the trial of the action'.  BGNV has shown no error in that approach. 

Ground 3

1. Ground 3 is expressed as an alternative to grounds 1 and 2, and has the same particulars as ground 2.  It alleges:

   Alternatively to Grounds l and 2, if the primary judge was correct to determine BGNV's application to strike out PFR 5, 9 and 11 by applying the 'so clearly untenable that it could not succeed' test, her Honour acted upon a wrong principle and thereby erred in law in that her Honour found that ICWA's claim was not untenable when she should have found, for the same reasons as underlie Ground 2, that ICWA's claim was untenable.  Until the relevant property the subject of ICWA's s.564 application (the proceeds of the debts owing by TBGL and BGF to BGNV to be realised in the (liquidation) existed, ICWA could have no cause of action in respect of that (non-existent) property. It was common ground before the primary judge that BGNV has not received any proceeds in respect of the debts owing to it.  Accordingly, her Honour should have found that PFR 5, 9 and 11 failed to disclose a reasonable cause of action.

2. Ground 3 expressly relies on the same reasons that underlie ground 2.  Having found that those reasons are not sufficient for the court to interfere with the decision below, ground 3 must also fail.   

Ground 4

1. Ground 4 alleges:

   The primary judge acted upon a wrong principle and thereby erred in law in holding that the issues raised by PFR 5, 9 and 11 were not hypothetical and did not involve the Court giving an advisory opinion contrary to Chapter III of the Constitution. While her Honour correctly recognised that a claim is not hypothetical when it is based on facts which 'have occurred', her Honour erred in finding that the claims made in PFR 5, 9 and 11 were based on 'events that have occurred'.  Those claims are based on events that have not yet occurred and which may never occur.  Her Honour correctly recognised that there is no power to grant a declaration where the question is purely hypothetical in the sense that it is claimed in relation to circumstances that have not occurred and might never happen.  Her Honour should have found that PFR 5, 9 and 11 were hypothetical in this sense and struck them out, together with the associated paragraphs of ICWA's SFIC.

2. In detailed particulars - in many ways a submission rather than particulars of the ground of appeal - BGNV outlines six steps which it contends must occur before any relief can be given under PFR 9 or 11.  None of those steps has yet occurred.  Accordingly, BGNV submits that the claims for relief are hypothetical and outside the proper exercise of judicial power.

3. Her Honour recognised that the action is within federal jurisdiction, and there must be a justiciable controversy, that is an 'immediate right, duty or liability to be established by the determination of the Court'.[73]  Her Honour also had regard to the need for a declaration to concern a real controversy susceptible of judicial determination for it to be a proper exercise of judicial power.[74] 

   [73] Primary reasons at [99], citing Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478 [27]; In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265; CGU Insurance v Blakeley [2016] HCA 2; (2016) 259 CLR 339 [26].

   [74]  Primary reasons at [99] -[100], citing CGU Insurance v Blakeley [2016] HCA 2; (2016) 259 CLR 339 [26]; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51 [3] - [4].

4. The primary judge addressed, in detail,[75] the issues relating to a declaration regarding future conduct and three recent cases in the High Court:  CGU Insurance v Blakeley; Palmer v Ayres;[76] and Re Barrow.[77]  She concluded:

   I am unable to accept BGNV's submission that the relief sought by ICWA in PFRs 5, 9 and 11 is hypothetical.  The fact that the relief sought by ICWA in those PFRs is dependent on the determination of a number of contingent issues does not mean that its claim can be regarded as hypothetical.  It seeks to have those contingent issues resolved in the course of the trial of the action.  The resolution of those issues will require factual findings arising from events which have occurred, and legal conclusions in respect of the operation of agreements which presently exist … I did not understand it to be in dispute that ICWA would have a commercial interest in obtaining the declaratory relief it seeks, and in an order under s 564 in the winding up of BGNV. 

   Further, the fact that the relief sought is pursued in the alternative to other relief (in PFRs 6, 7, 8 and/or 10) does not mean that the relief sought in PFRs 5, 9 and 11 is hypothetical.  For the reasons already outlined, it is not an abuse of process to seek alternative forms of relief.[78]

   [75] Primary reasons at [101] - [110].

   [76] Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478.

   [77] Re Barrow [2017] HCA 47; (2017) 91 ALJR 1240 (Edelman J).

   [78] Primary reasons at [111] ‑ [112].

5. With respect, we agree with both her Honour's conclusion and her reasons for it.  The contention that a declaration sought is contingent on other findings or orders being made in the proceedings does not make it hypothetical.  That is clearly established by the authorities on which the primary judge relied.

Grounds 5 and 6

1. Ground 5 alleges:

   The primary judge acted upon a wrong principle and thereby erred in law in finding that [978A], [1090]-[1103] and [1108A] of ICWA's SFIC were not irrelevant to PFR 23 to 29 and that, as a result, their inclusion was not likely to prejudice, embarrass or delay the fair trial of the action. These paragraphs are irrelevant to the claims for relief made in PFR 23 to 29. In finding as she did, the primary judge took into account an irrelevant consideration and failed to take into account a relevant consideration in that in both her judgment of 1 February 2018 and in her judgment of 9 February 2018 her Honour relied upon a case that had been abandoned by ICWA to reject BGNV's challenge to the relevance of the WI paragraphs. As a result, the primary judge never properly addressed BGNV's case.

2. In particulars, pars (a) to (g), BGNV alleges that the judgment was written on the basis of the claim that had previously been set out in PFR 30, and which ICWA no longer advanced at the time the reasons were published. 

3. Ground 6 alleges that the same paragraphs, and par 1108A, are an abuse of process and the primary judge erred in not striking them out on that basis.

4. The claim previously set out in (proposed) PFR 30 and 31 was for an order restraining BGNV from taking any further steps to prosecute or progress specified claims in proceedings it commenced in the Federal Court of Australia in 2016 (WAD 191 of 2016) or any claims for relief for the same or substantially the same relief. In general terms, in the Federal Court proceedings BGNV seeks orders that Western Interstate is not a creditor of Bell Group Finance; that Western Interstate has no debt or claim admissible to proof against Bell Group Finance under s 553(1) of the Corporations Act; and orders directing Western Interstate to withdraw its proof of debt, alternatively, directing the liquidators of Bell Group Finance to reject the proof of debt.  PFR 30 and 31 were included in minutes of proposed amendment, but not included in the writ.

5. PFR 30 and 31 were based on the contention that BGNV breached express terms of the Western Interstate Inter-Creditor Agreement and one or more implied terms of each of the Western Interstate Inter-Creditor Agreement and the Western Interstate Assignment Agreement by its conduct in filing and prosecuting the Federal Court proceeding.  The decision of the Court of Appeal in December 2017 was concerned, primarily, with the claim of implied contractual terms. [79]

   [79] Bell Group NV (in liq) v Insurance Commission of Western Australia [2017] WASCA 229.

6. In her reasons delivered 1 February 2018, the primary judge said that, following the judgment of the Court of Appeal, ICWA had filed a second further minute of further amended writ, and a second further minute of amended SFIC in which it appeared to abandon the claims in PFR 30 and 31.  To avoid further delay, her Honour published her reasons and gave the parties the opportunity to make further submissions on ICWA's proposed amended writ and pleading.[80] 

   [80] Primary reasons [26] - [29].

7. In further reasons, published 9 February 2018, her Honour dealt with the proposed amendments and BGNV's challenge to them.[81]  The primary judge said that she understood that ICWA's case is that the loan from Bell Group UK to Western Interstate, and the implications of the terms on which the preference shares were issued (by Western Interstate to Bell Group UK), are relevant to the construction of the Western Interstate Agreements because that factual background forms part of the objective facts known by the parties to the Western Interstate Agreements, at the time those Agreements were entered into, and is relevant to what funds the parties contemplated would ultimately be returned to the Indemnifying Creditors by the operation of those agreements, especially the Western Interstate Inter-Creditor Agreement.  Her Honour then considered, in turn, five grounds on which BGNV challenged the amendments relating to Western Interstate.  The reasons were brief, but dealt with each of the grounds and explained why it was not accepted.

   [81] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [2018] WASC 44.

8. Relevantly to this application, the primary judge considered the argument that, ICWA having abandoned PFR 30 and 31, the challenged amendments did not relate to any of its other claims.  Her Honour did not accept that submission because the facts pleaded 'may be relevant to ICWA's arguments concerning the proper construction of the WI Agreements'.[82]  Her Honour also found that the amendments did not impermissibly exceed the indorsement on the writ, saying that BGNV's submission proceeded on the incorrect premise that the amendments were irrelevant to any of the other PFR.[83]

   [82] Primary reasons in Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [19], [23].

   [83] Primary reasons in Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [24].

1. The substance of ground 5 is that the matters set out in the challenged paragraphs of the SFIC are irrelevant to the relief claimed and would be likely to prejudice, embarrass or delay the fair trial of the action.

2. BGNV relies, in part, on the structure of the SFIC, grouping the factual propositions, legal propositions, and contentions in support of a specified PFR.  BGNV contends that, unless a pleaded fact is expressly adopted in another part of the SFIC, it is to be treated as pleaded to support only the particular PFR the subject of the part in which it is alleged.[84]  That accurately describes the structure of the document, although we doubt that it should be applied strictly to exclude the allegation of facts which are otherwise relevant, simply because of their location in the document. 

   [84] BGNV written submissions [30].

3. A central aspect of the argument advanced by BGNV on this appeal was that the challenged paragraphs of the SFIC related, and related only, to the now abandoned relief in PFR 30 and 31.  When the SFIC is looked at in detail, the structure is not quite so rigid. 

4. PFR 23 to 29 claim a series of declarations in the inherent jurisdiction of the court, that:

   (1) BGNV became a Terminating Indemnifier for the purposes of two agreements, the Western Interstate Assignment Agreement and the Western Interstate Inter-Creditor Agreement on or about 31 March 1999;[85]

   (2) upon becoming a Terminating Indemnifier, BGNV ceased to have any legal, beneficial or other interest or claim in or with respect to 57,000 fully paid ordinary shares in Western Interstate the subject of the Western Interstate Assignment Agreement;[86]

   (3) Bell Bros is obliged to transfer 57,000 fully paid ordinary shares in Western Interstate to the liquidator of Bell Group Finance;[87]

   (4)the liquidator of Bell Group Finance is obliged to accept the transfer;[88]

   (5)upon receipt of the transfer, the liquidator of Bell Group Finance holds the shares on trust for ICWA and the Commonwealth;[89]

   (6)ICWA and the Commonwealth are the sole beneficial owners of the shares;[90] and

   (7)any distribution of monies by way of return of capital or otherwise by Western Interstate, with respect to the shares, to ICWA and the Commonwealth on the liquidation of Western Interstate is not subject to cl 5 of the Western Interstate Inter‑Creditor Agreement or sub-cl 7.1 of the Indemnification and Post Termination Inter Creditor Agreement.[91]

   [85] PFR 23.

   [86] PFR 24.

   [87] PFR 25.

   [88] PFR 26.

   [89] PFR 27.

   [90] PFR 28.

   [91] PFR 29.

5. While ICWA may have supported the factual propositions now challenged by reference to the case in PFR 30 and 31, which have now been abandoned, its pleading is not so restricted.

6. ICWA sets out in pt 6.1.2 the factual propositions in support of the declaration in PFR 23.  These include that Western Interstate claims to be a creditor of Bell Group Finance and has lodged a proof of debt in the winding up of Bell Group Finance for $758,386,538.[92]  It further pleads the 'existence of', 'complexities arising from', and the 'details and implications of' the Western Interstate share issue to Bell Group UK, as set out in pt 6.1.14, as part of the context in which the Western Interstate Inter‑Creditor Agreement, the Western Interstate Indemnity Agreement and the Western Interstate Assignment Agreement were drafted and executed.[93]  These matters in pt 6.1.2 are expressly pleaded for the purpose of PFR 23, and also adopted for the purpose of PFR 24[94] and PFR 25 to 28.[95]  Those pleas are not challenged in this appeal.

   [92] SFIC [978A].

   [93] SFIC [982], [983].

   [94] SFIC [1069].

   [95] SFIC [1075].

7. Those express and unchallenged references to or adoptions of the matters pleaded in pt 6.1.14, weigh heavily against the submission BGNV puts on appeal. 

8. We also accept the submission of ICWA in the appeal that the primary judge is seised of the whole breadth of the dispute and is best placed to decide whether matters are relevant, and whether the inclusion of certain paragraphs is or is not likely to give rise to a delay or some prejudice at trial.[96]  In a matter of this complexity, the managing judge has an understanding of the case which the appeal court cannot approach.  

   [96] Appeal ts 48.

9. BGNV asserted that it would suffer prejudice should the disputed paragraphs remain in the plea against it.  It has not demonstrated that prejudice.  In particular, we note the submission on behalf of ICWA that this action and the Liquidator's Application are managed together and provisionally listed for hearing together.  The SFIC in the Liquidator's Application is before the court.[97]  BGNV and ICWA are both parties to that application.  To the extent that these matters may be in issue and the subject of evidence in the Liquidator's Application, this court cannot infer prejudice from the inclusion, at this stage, of factual propositions that may later prove not to be relevant.

   [97] Blue Appeal Book, vol 5, 1955 ff.

10. In the circumstances, with one reservation which is the subject of a separate ground of appeal in ground 7, we are not satisfied that BGNV has shown that her Honour's decision is attended with sufficient doubt to grant leave to appeal, or that it would suffer prejudice should the leave be refused. 

11. Ground 6 alleges:

    The primary judge acted upon a wrong principle and thereby erred in law in finding that paragraphs [978A], [1090] ‑ [1103] and [1108A] of ICWA's SFIC should not be struck out as an abuse of process. Her Honour should have found that those paragraphs were an abuse of process and struck them out.

12. In particulars, BGNV identifies the abuse as arising from the overlap between the issues in those paragraphs and the issues in proceedings in the Federal Court.

13. The primary judge considered BGNV's contention that the pleading of these matters was an abuse of process in each of her decisions, and set out in detail the principles applicable where multiple or successive actions are brought in relation to the same issues.[98]  BGNV makes no complaint about her Honour's statement of principle.

    [98] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 2] [35] - [38].

14. In the earlier of the two decisions, the primary judge considered the arguments put forward by BGNV in support of its claim that the challenged paragraphs relating to the Western Interstate agreements were an abuse of process.  Her Honour held that the paragraphs were not so clearly irrelevant to the relief sought in PFR 23 to 29 that they are likely to prejudice, embarrass or delay the fair trial of the action, or their continued inclusion would constitute an abuse of process.[99]  For the reasons given in relation to ground 5, we are not satisfied that BGNV has shown that conclusion was wrong.

    [99] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 2] [215].

15. Her Honour also considered and rejected the submission that par 978A was an attempt to create a common sub-stratum of issues to enhance ICWA's foreshadowed application to transfer the Federal Court proceedings.[100]  BGNV does not challenge that finding, or maintain that submission on the appeal.

    [100] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 2] [216].

16. In the second judgment, the primary judge considered the submission that the paragraphs relating to the Western Interstate agreements were an abuse of process, because they raise issues which are already the subject of the Federal Court proceedings.  Her Honour did not accept that submission for two reasons: first, that there was no prospect of those issues being tried twice, so as to raise the prospect of inconsistent outcomes; second, she could not see 'any other basis on which it might be said that the inclusion of the WI challenged amendments would be liable to bring the administration of justice into disrepute'.[101]

    [101] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [28].

17. BGNV's submission on appeal is that 'it is an abuse to litigate in separate proceedings a matter the subject of existing proceedings'.  No authority is cited for that proposition and, in our opinion, it is too broad.  There are circumstances where the bringing of concurrent proceedings in different courts, relating to the same subject matter, will be found to be an abuse of process.[102]  The fact that there is an overlap in the issues in the Federal Court proceedings brought by BGNV and the proceedings in the Supreme Court between ICWA and thirteen defendants, including BGNV, is not sufficient to demonstrate the later proceedings are an abuse. 

    [102] See Moore v Inglis (1976) 50 ALJR 589.

18. The circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined.  They extend to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness; to circumstances in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[103] The determination of whether an abuse has occurred is an evaluative decision on which minds may differ.[104] 

    [103] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25]; Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 [69].

    [104] R v Carroll [2002] HCA 55; (2002) 213 CLR 635 [73]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 [7].

19. BGNV has not identified anything which makes the continued advancing of the factual propositions relating to the Western Interstate agreements an abuse of the processes of the court. 

Ground 7-The WI paragraphs - [1097B]

1. Paragraph [1097B] of the SFIC states:

   At all material times from the commencement of the Main Proceedings the plaintiffs in the Main Proceedings (including TBGL, Bell Group Finance, Bell Bros, BGUK, BGNV and Western Interstate acting by their respective liquidators or provisional liquidators from time to time) contended and sought to (and in the judgment did) prove that BGF was indebted to Western Interstate in the amount of $758,386,538 (referred to in paragraph 978A above) on account of the debt referred to in paragraph 1096 and interest accrued thereon as at the date of liquidation of BGF.

2. In a footnote to par 1097B, ICWA cites the judgment in the Main Proceedings,[105] and various paragraphs in the pleadings and particulars.

   [105] CIV 1462 of 2000.

3. Ground 7 alleges:

   The primary judge acted upon a wrong principle and thereby erred in law in finding that [1097B] of ICWA's SFIC was not irrelevant and would not be likely to delay the fair trial of the action in that:

   7.1.her Honour failed to take into account relevant considerations, namely that [1097B]:  (a) did not support any PFR and was not pleaded as a material fact in support of any pleaded cause of action; and (b) will, in its terms, require an examination to be undertaken of the conduct of the Main Proceeding from 2000 to 2008 to determine what the plaintiffs did contend for and seek to prove in that proceeding.  This will inevitably delay the trial of the action and it will do so in respect of an allegation in relation to which no relief is sought; and

   7.2.her Honour took into account an irrelevant consideration, namely that the Federal Court proceeding requires a 'detailed' examination of these issues to be undertaken in order to resolve BGNV's claims in that proceeding.  The Federal Court proceeding does not require any examination of these issues in order to resolve BGNV's claims in that proceeding.

4. The primary judge did not accept, as a matter of practical reality, that par 1097B of the SFIC would 'require the Court to embark on an investigation of the conduct of the Bell trial over 20 years from 1995'.[106]  Her Honour considered that the issue (in the Federal Court proceedings) whether the transfer of Western Interstate shares to BGUK was a fraud would be determined in the Federal Court or transferred to the Supreme Court.  Her Honour continued:

   Consequently, in so far as the WI challenged amendments, and especially [1097B], refer to the issue of the preference shares, as part of the context in which the WI Agreements were entered into, it is not at all clear why, in this action, it will be necessary for the parties' subsequent conduct in relation to the preference shares to be examined in the same detailed way in which it will be examined in order to resolve BGNV's claims in the Federal Court proceedings (wherever those proceedings are ultimately determined).  Accordingly, I do not accept that the amendment of the SIFC to include the WI challenged amendments, including [1097B], is likely to delay the fair trial of this action.[107]

   [106] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [26].

   [107] Bell Group NV (in liq) v Insurance Commission of Western Australia [No 3] [27].

1. Counsel for BGNV did, as least as a matter of impression, over-egg the pudding in his description of the prejudice that this paragraph would entail.  It is hard to disagree with the assessment of the trial judge who has a longstanding and detailed knowledge of the complexity of the litigation and assessed the practical reality of the situation.  But BGNV submits, correctly in our opinion, that par 1097B cannot be supported as relevant to the construction of the Western Interstate agreements, or part of the context in which those agreements were entered into, as it relates exclusively to post contractual conduct. 

2. Counsel for ICWA was dismissive of the complaint in ground 7, asserting that no error had been identified that would justify appellate intervention.

3. We accept the general proposition that questions of relevance of factual allegations are generally matters for the trial judge.  But ICWA has put forward no basis on which the contentions and conduct of the parties 'at all material times from the commencement of the Main Proceedings' is relevant to their claim.  In oral submissions, counsel for ICWA referred to the context in which the Western Interstate agreements were negotiated, including that the parties were aware that Western Interstate claimed to be a creditor of Bell Group Finance, and the effect of that on the flow of money recovered.  Counsel said:

   Ultimately in these prayers for relief, of course one is dealing with the fact that subsequent to entering into the agreements, one of the indemnifiers, [BGNV], dropped out and a question which therefore arises is:  well, how does that work?  What happens to the rights that the parties agreed upon under these agreements that would potentially be distributed to the shareholders of Western Interstate if BGNV dropped out because it's no longer an indemnifier?  ICWA essentially says, 'We want a declaration at the end of the case that if moneys do flow through in the way that the parties originally thought they would to shareholders of Western Interstate, BGNV doesn't get any of that money.'  That's essentially what this is all about. 

   In order to bolster that argument to explain why we say that's a proper construction of the agreements, we've put forward some facts which put those agreements in their context. [108]

   [108] Appeal ts 50 - 51.

4. Notwithstanding the reluctance of an appeal court to intervene on a matter of this nature, we are satisfied that the paragraph should not stand.  The primary judge did not see that it would be necessary for the issue to be examined in a detailed way.  But while it is part of the pleaded case, the parties will join issue on it.

5. We would, to that limited extent, grant leave and allow the appeal on ground 7.

Ground 8

1. Ground 8 alleges:

   The primary judge acted upon a wrong principle and thereby erred in law in not striking out PFR 29 and Parts 6.1.13 to 6.1.15 (paragraphs 1086 to 1142) of ICWA's SFIC on the ground that the issues raised by this prayer for relief and the paragraphs are hypothetical.  Her Honour should have found that the issues raised are hypothetical because relief is sought in relation to circumstances that have not occurred and which might never occur.

2. PFR 29 claims relief in these terms:

   A declaration in the Court's inherent jurisdiction that any distribution of monies by way of return of capital or otherwise by Western Interstate, with respect to the 57,000 fully paid ordinary shares referred to in paragraph 27 to ICWA and the Commonwealth upon the liquidation of that company is not subject to:

   a.clause 5 of the Western Interstate Inter-Creditor Agreement; or

   b.sub-clause 7.1 of the PTICA.

3. In particulars to ground 8, the appellants set out five steps that will need to occur before there can be a return of capital in the liquidation of Western Interstate and contends that whether Western Interstate can effect a distribution of monies by way of a return of capital depends on facts ‑ including the liquidation of Western Interstate ‑ which have not yet occurred and which may never occur.

4. We have discussed above the primary judge's general consideration of whether a claim is hypothetical.  With regard to PFR 29, her Honour applied that reasoning and said:

   Finally, counsel for BGNV submitted that PFR 29 was hypothetical and should be struck out on that basis.  He submitted that PFR 29 was hypothetical because it assumed that each of the declarations sought in PFRs 23 to 28 had been made; that a dividend had been paid to Western Interstate in the winding up of BGF; that the WIAA is valid and not void; that Western Interstate had paid a dividend to its creditors, leaving a surplus to be paid by way of a return of capital to its shareholders; and that it is possible to make a return of capital (when the question whether and how to make a return of capital depends upon contingencies including whether Western Interstate ‑ which is in provisional liquidation ‑ is wound up or whether it is solvent).

   I am unable to accept that PFR 29 is hypothetical.  There is no doubt that the relief sought in that PFR would not be granted unless the various assumptions underlying it have come to pass by that stage, including whether ICWA succeeds in its application for the relief in PFRs 23 to 28.  Having regard to the principles discussed at [157] ‑ [177], that is not a proper basis for concluding that PFR 29 is hypothetical.

   Furthermore, in so far as PFR 29 assumes that dividends have been paid (or will be paid) in the winding up of BGF and of Western Interstate, and that it is possible to make a return of capital to the shareholders of Western Interstate, whether those assumptions are well founded, or come to fruition, will depend to some extent upon the timing of the trial in his action. … For the moment, however, the position is that Western Interstate claims to be a creditor of BGF and has lodged a proof of debt in its winding up, which will be adjudicated by the liquidator in the ordinary way, unless the basis for the claimed debt is successfully challenged elsewhere.  There is clearly a dispute between BGNV and ICWA in relation to the construction of the WI Agreements, and as to their rights as a consequence of those agreements.  The determination of that dispute would have real consequences for those parties in relation to the quantum of the dividend they may receive in the winding up of Western Interstate.  Understood in that way, PFR 29 therefore does not raise a hypothetical question.[109]

   [109] Primary reasons [219] ‑ [221].

5. As for Ground 4, we agree with her Honour's reasoning and her conclusion. 

Conclusion

1. We would grant leave to appeal and uphold the appeal on ground 7 only.  There is some overlap with ground 5, where par 1097B is challenged as part of wider complaint.  It is, however, sufficient to deal with ground 7 and the issue raised in par 1097B separately.

2. Otherwise, the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON

16 OCTOBER 2018

     Where in any winding up:

(a)     property has been recovered under an indemnity for costs of litigation given by certain creditors, or  has been protected or preserved by the payment of moneys or the giving of indemnity by creditors; or

(b)     expenses in relation to which a creditor has indemnified a liquidator have been recovered;

the Court may make such orders, as it deems just with respect to the distribution of that property and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk assumed by them.