NEW SOUTH WALES. Company-Voluntary liquidation-Examination summons-Examination before
Master-in-Equity-Civil proceeding-Evidence-Service and Execution of Process Act 1901-1924 (No. 11 of 1901-No. 26 of 1924), sec. 16-Companies Act 1899 (N.S.W.) (No. 40 of 1899), secs. 89, 123*, 124*, 137. April 11, 29.
evidence, or to produce books or documents, in any civil or criminal trial or proceeding, such
summons may upon proof that the testimony of such person or the production of such books or documents is necessary in the interests of justice by leave of such Court " or Judge such terms as the Court' or "Judge
may impose be served on such person in any other State."
Held, that a summons issued in pursuance of sec. 123 of the Companies Act 1899 (N.S.W.), requiring a person to attend and to be examined (under sec. 124) before the Master-in-Equity concerning the affairs of a company that had gone into voluntary liquidation, was a summons to such person to appear and give "evidence" in a "civil proceeding," within the meaning of sec. 16 (1) of the Service and Execution of Process Act 1901-1924.
Decision of the Supreme Court of New South Wales (Harvey C.J. in Eq.) affirmed.
APPEAL from the Supreme Court of New South Wales.
A company incorporated in New South Wales in the name of Williams Bros. Ltd. went into voluntary liquidation. On 5th November 1928 Harvey C.J. in Eq., on the authority of secs. 123 and 124 of the Companies Act 1899 (N.S.W.), made an order giving leave to the liquidator, Eric Sydney Spooner, to issue a summons to each of a number of persons, among whom was the appellant, Sidney Albert Cheney, a resident of Victoria, to attend and be examined before the Master-in-Equity respecting the affairs of the Company, and to produce books and documents. On 20th November 1928, in pursuance of that leave, the liquidator obtained a summons from the Master-in-Equity, summoning the appellant (inter alios) to attend on 3rd December 1928 to be examined for the purpose of proceedings directed by the Chief Judge in Equity to be taken before the Master-in-Equity in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cheney v Spooner [1929] HCA 12
Case
[1929] HCA 12
Decision Date
CaseChat Overview and Summary
The appellant, Sidney Albert Cheney, a resident of Victoria, appealed to the High Court of Australia against an order of the Supreme Court of New South Wales granting leave to serve a summons on him in Victoria. The summons, issued under sections 123 and 124 of the *Companies Act 1899* (N.S.W.), required Mr. Cheney to attend before the Master-in-Equity to be examined concerning the affairs of a company in voluntary liquidation and to produce relevant documents. The liquidator of the company, Eric Sydney Spooner, sought this examination under section 16 of the *Service and Execution of Process Act 1901-1924* (Cth).
The central legal issues before the High Court were whether the summons issued under the *Companies Act 1899* (N.S.W.) constituted a requirement to appear and give "evidence" in a "civil proceeding" within the meaning of section 16(1) of the *Service and Execution of Process Act 1901-1924* (Cth), and whether the examination process itself qualified as a civil proceeding. The appellant argued that the examination was merely an inquisitorial process for gathering information, not a formal trial or proceeding where evidence is adduced for judicial determination, and that the requirement to produce documents was ancillary to this information-gathering rather than a primary purpose.
The High Court, affirming the decision of the Supreme Court of New South Wales, held that the examination summons did fall within the scope of section 16 of the *Service and Execution of Process Act*. The Court reasoned that the application to the Court for leave to issue the summons, and the subsequent examination before the Master-in-Equity, constituted a distinct judicial proceeding. Furthermore, the Court determined that the information sought through examination on oath, even if inquisitorial in nature and not directly leading to a judicial decision in that specific forum, qualified as "evidence" for the purposes of the *Service and Execution of Process Act*. This interpretation encompassed both testimony and the production of documents as necessary components for the effective conduct of the proceeding.
Consequently, the appeal was dismissed, with the High Court upholding the order granting leave to serve the summons on the appellant in Victoria.