Country Stores Pty Ltd v NZI Capital Corporation Ltd
[1992] FCA 88
•2 Mar 1992
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No G507 of 1991 1
GENERAL DIVISION 1
BETWEEN :
COUNTRY STORES PTY LIMITED (IN LIOUIDATION) and TANDRIO PTY LIMITED (IN LIOUIDATIONL
Applicants
m: NZ1 CAPITAL CORPORATION LIMITED
First Respondent
BOLES STORES PTY LIMITED
Second RespondentCORRIGENDUM
Correction to the Ex Tempore Reasons for Judgment of the
Honourable Mr Justice Hill:
Page 1 - The judgment should be dated 2 March 1992
(not 1991).
Associate: f L , , L & u Sydney I 20 March 1992 IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NO G507 of 1991 1
GENERAL DIVISION 1
BETWEEN:
COUNTRY STORES PTY LIMITED (IN LIOUIDATION) and TANDRIO PTY LIMITED (IN LIOUIDATIONL
Applicants
AND : NZ1 CAPITAL CORPORATION LIMITED
First Respondent
BOLES STORES PTY LIMITED
Second RespondentCORRIGENDUM
Correction to the Ex Tempore Reasons for Judgment of the
Honourable Mr Justice Hill:
Page 1 - The judgment should be dated 2 March 1992
(not 1991).
Associate: +do-
Sydney / 20 March 1992
? 7 , .,-,S '3. -2z 7 .- , T : ... . ........ .. d.....,
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WIUES DISTRICT REGISTRY ) No G507 of 1991 )
GENERAL DIVISION )
BETWEEN:
COUNTRY STORES PTY LIMITED /IN LIOUIDATION) and TANDRIO PTY LIMITED (IN LIOUIDATIONL
Applicants AND :
- NZ1 CAPITAL CORPORATION LIMITED
First Respondent
BOLES STORES PTY LIMITED
Second RespondentCORRIGENDUM
Correction to the Ex Tempore Reasons for Judgment of the
Honourable M r Justice Hill:
Page 1 - The judgment should be dated 2 March 1992
(not 1991).
Associate: v d o u Sydney l 20 March 1992
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No. g.% .. 7.2~
IN THE FEDERAL COURT OF AUSTRALIA ) j NEW SOUTH WALES DISTRICT REGISTRY ) NO G507 of 1991 GENERAL DIVISION j
TWEEN:
COUNTRY STORES PTY LIMITED (IN LIOUIDATION\ and TANDRIO PTY
! 'X
S T'. - - ~ \ vED LIMITED (IN LIOUIDATION)
Applicants0 6 MRR \gg2
F E o ~ ~ A L
~ U u T OF m: NZ1 CAPITAL CORPORATION LIMITED A ~ ~ ~ ~ \ - \ R
p ~ ~ ~ c \ P P L
\$ R E ~ ~ s ~ ~ Y First Respondent
\ 5 BOLES STORES PTY LIMITED
Second RespondentC O W : HILL J PLACE: SYDNEY DATED: 2 MARCH 1991
EX TEMPORE REASONS FOR JUDGMENT
The applicant in the motion before me seeks production, pursuant to either 0.15 r. 11 sub-r.1 or 0.15 r. 13 sub-r.1, of transcripts of a public examination conducted by or on behalf of the liquidator in relation to the affairs of
Country Stores Pty Limited. The persons whose examinations are said to be relevant in the present proceedings include Mr Bowles, Mr Charles, Mr Cohen, Mr Davidson, Mr Daniel and Mrs
Daniel, Mr Coffer, Mr Rheinhardt and Mr Silvia.Counsel for Country Stores opposes the application while not denying that her client had, in its affidavit of discovery, referred to the transcripts as relevant to the issues in dispute.
In essence two submissions were made. The first was
that there was a policy enshrined in the Companies Queensland Rules 1985, l , that the transcript of public examinations be not made available unless the person seeking them had a legitimate interest and the court granted permission to that end. Reference was made to the decision of Young J in the Supreme Court of New South Wales in Re S~edlev Securities Pty Limited: Ex ~arte Aerons 1990 3 ACSR 349. That case concerns an application for access to the transcript of the whole examination into S~edlev Securities conducted under s.541 of the Com~anies Code in respect of four members of a firm of solicitors. It was held that the court in determining whether to grant access should satisfy itself that the person making application had a legitimate interest and showed that the material in question could be relevant. Then prima facie that party should have leave to inspect the transcript or part of it. With respect, I do not find that decision of great assistance.
The present proceedings are proceedings between the company in liquidation and the applicant on the motion. It is acknowledged that the company in liquidation has (or at least had) custody, possession or control of the transcript, had been in a position to make use of it in the preparation of its own case but wishes to deny to the other side, either altogether (or at least for a limited period) access to that material.
In my mind in exercising the discretion I have to order production, I have regard to the fact that the interest of litigation, being conducted in a way which is fair and promotes justice, is not that a case be conducted in a half light where one of the parties is armed with material which is not available to the other. That, no doubt, was the way litigation was conducted last century and indeed until quite recent times. It is not the way which this court and its rules contemplate that litigation will proceed.
That is not to say that the material ought necessarily at this stage be made available to all the parties. There is something to be said for the material to be treated as available, at this stage, only to counsel and legal advisers but subject to the right, in due course, to apply for wide access should this become necessary. I have in mind that this would be an appropriate order because there may well be a large amount of the material which is totally irrelevant to
the present proceedings. If that be the case then clearly it ought not to be made available in these proceedings to a wider
audience.I am, however, assured by counsel for the respondents to the motion that there is material in each of the relevant examinations which is of relevance to the present litigation and giving access to the legal advisers ensures that the relevant material is at least available for use in the present proceedings.
The question of more apparent difficulty is the question of the stage in the present litigation at which the material should be made available. I say apparent difficulty because there is something to be said for the view that the material is not really required prior to witness statements being produced and so as to enable perhaps witness statements to be co-ordinated with the material in the public examination.
On the other hand, the material is material which has been discovered and what is really sought in the current application is to deny inspection of it. Treated in this way there is no particular reason why inspection should be delayed until after the witness statements are filed. Indeed, that is not the usual course where discovery is ordered. For those reasons it seems to me that like other documents discovered in
the proceedings, these documents should also be discovered,
albeit that the inspection of them is to be limited to the
legal advisers.
In these circumstances I propose to order that Country Stores Pty Limited (In liquidation) and Tandrio Pty Limited (In Liquidation) produce to counsel for NZ1 Capital Corporation Pty Limited and counsel for Bowles Stores Pty Limited the transcript of public examinations of the persons mentioned who are referred to as "the examinees" in c1.12 of
Mr Millett's affidavit and direct that until further order
that material is to be available only to counsel and legal
advisers and not to be disclosed by them to the clients.
The respondent of the motion is to pay the applicant
to the motion's costs.
I certify that this and the
preceding four (4) pages
are a true copy of the Reasonsfor Judgment herein of his Honour
M r Justice Hill.
Associate: ~JL."-?-- Date: 2 March 1992 /"'
1 J U D G M ~ ~ ~ NO. 8.8.. I . . ~ Z
IN THE FEDERAL COURT OF M.ETRALIA -W 1
NEW SOUTH WALES DISTRICT REGISTRY 1 NO G507 of 1991 1
GENERAL DIVISION 1 COUNTRY STORES PTY LIMITED [IN LIOUIDATION\ and TANDRIO PTY LIMITED (IN LIOUIDATIONl
Applicants
NZ1 CAPITAL CORPORATION LIMITED
First Respondent
BOLES STORES PTY LIMITED
Second Respondent
CORAM: HILL J PLACE: SYDNEY DATED: 2 MARCH 1991
EX TEMPORE REASONS FOR JUDGMENT
The applicant in the motion before me seeks production, pursuant to either 0.15 r.11 sub-r.1 or 0.15 r.13 sub-r.1, of transcripts of a public examination conducted by or on behalf of the liquidator in relation to the affairs of
Bowles, Mr Charles, Mr Cohen, Mr Davidson, Mr Daniel and Mrs Country Stores Pty Limited. The persons whose examinations are said to be relevant in the present proceedings include Mr Daniel, Mr Coffer, Mr Rheinhardt and Mr Silvia. Counsel for Country Stores opposes the application while not denying that her client had, in its affidavit of discovery, referred to the transcripts as relevant to the issues in dispute.
In essence two submissions were made. The first was that there was a policy enshrined in the Companies Queensland Rules 1985, 7 that the transcript of public examinations be not made available unless the person seeking them had a legitimate interest and the court granted permission to that end. Reference was made to the decision of Young J in the Supreme Court of New South Wales in Re S~edlev Securities Pty Limited: Ex Darte Aerons 1990 3 ACSR 349. That case concerns an application for access to the transcript of the whole examination into S~edlev Securities conducted under s.541 of the Com~anies Code in respect of four members of a firm of solicitors. It was held that the court in determining whether to grant access should satisfy itself that the person making application had a legitimate interest and showed that the material in question could be relevant. Then prima facie that party should have leave to inspect the transcript or part of it. With respect, I do not find that decision of great assistance.
The present proceedings are proceedings between the company in liquidation and the applicant on the motion. It is acknowledged that the company in liquidation has (or at least had) custody, possession or control of the transcript, had been in a position to make use of it in the preparation of its own case but wishes to deny to the other side, either altogether (or at least for a limited period) access to that material.
In my mind in exercising the discretion I have to order production, I have regard to the fact that the interest of litigation, being conducted in a way which is fair and promotes justice, is not that a case be conducted in a half light where one of the parties is armed with material which is not available to the other. That, no doubt, was the way litigation was conducted last century and indeed until quite recent times. It is not the way which this court and its rules contemplate that litigation will proceed.
That is not to say that the material ought necessarily at this stage be made available to all the parties. There is something to be said for the material to be treated as available, at this stage, only to counsel and legal advisers but subject to the right, in due course, to apply for wide access should this become necessary. I have in mind that this would be an appropriate order because there may well be a large amount of the material which is totally irrelevant to
the present proceedings. If that be the case then clearly it ought not to be made available in these proceedings to a wider
audience.I am, however, assured by counsel for the respondents to the motion that there is material in each of the relevant examinations which is of relevance to the present litigation and giving access to the legal advisers ensures that the relevant material is at least available for use in the present proceedings.
The question of more apparent difficulty is the question of the stage in the present litigation at which the material should be made available. I say apparent difficulty because there is something to be said for the view that the material is not really required prior to witness statements being produced and so as to enable perhaps witness statements to be co-ordinated with the material in the public examination.
On the other hand, the material is material which has been discovered and what is really sought in the current application is to deny inspection of it. Treated in this way there is no particular reason why inspection should be delayed until after the witness statements are filed. Indeed, that is not the usual course where discovery is ordered. For those reasons it seems to me that like other documents discovered in
albeit that the inspection of them is to be limited to the the proceedings, these documents should also be discovered, legal advisers. In these circumstances I propose to order that Country Stores Pty Limited (In liquidation) and Tandrio Pty Limited (In Liquidation) produce to counsel for NZ1 Capital Corporation Pty Limited and counsel for Bowles Stores Pty Limited the transcript of public examinations of the persons mentioned who are referred to as "the examinees" in c1.12 of Mr Millett's affidavit and direct that until further order that material is to be available only to counsel and legal advisers and not to be disclosed by them to the clients.
The respondent of the motion is to pay the applicant
to the motion's costs.
I certify that this and the
preceding four (4) pages
are a true copy of the Reasonsfor Judgment herein of his Honour
M r Justice Hill.
Associate: $ c 7 1 d % w 7 Date: 2 March 1992
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