Du Bois v Carter No. Scgrg-98-48 Judgment No. S6732

[1998] SASC 6732

RE: MYPOLONGA CO-OPERATIVE SOCIETY LTD;
RE: RIVER EQUITY PTY LTD;
and THE CORPORATIONS LAW

Appeal from a Master
Lander J

This is an appeal from orders made by a Master of this Court on 15 April 1998.

The appellant is an investment broker who, it is asserted, had dealings with Mypolonga Co-operative Society Ltd (Administrator Appointed), (“Mypolonga”), and River Equity Pty Ltd (Administrator Appointed), (“River Equity”).

On 14 January 1998, Bruce Carter, a liquidator and the administrator of Mypolonga and River Equity, swore an affidavit in support of an application pursuant to ss596B and 597 of the Corporations Law, for an order for the examination of the appellant, Frances Charles Du Bois, relating to loans made by Mypolonga in the period between 1 January 1995 and 23 October 1996.

An order for the examination of the appellant was made on 3 February 1998 summoning him to attend before this Court on Wednesday, 25 February 1998.

Mr Du Bois attended the Court in response to the summons and was examined pursuant to the order.

On 10 February 1998, the solicitor for the appellant spoke to the barrister retained by Mr Carter who was to conduct the examination of the appellant and was told by the barrister that an order had been made that the examination of Mr Du Bois would be in private.

On 12 February 1998, the solicitor for the appellant was again informed that his client’s examination would be in private and that a solicitor, who sought to appear on behalf of Clayton Church Homes Incorporated, a party which had an interest in transactions in which Mr Du Bois and Mypolonga were involved, had applied to be present at the examination but that the application had been refused by the court.

The fiat on the court file shows that at a hearing before the Master on 12 February 1998 that, upon the administrator’s application, he made an order that the examination which had been conducted that morning and the examinations to be conducted on 25 and 26 February, should be “in camera”.  That order included the proposed examination of the appellant.

At the same time the Master adjourned the application by Clayton Church Homes Incorporated for access to the transcripts to a date to be fixed after 11 March 1998.

The appellant claims that he relied upon the assertion made by the barrister acting for the administrator, and the order made by the Court on 12 February 1998, that the examinations would be held in private for the purpose of deciding whether he would claim legal professional privilege.

A solicitor, not the solicitor presently acting for Mr Du Bois, who was also the subject of an order for examination, advised Mr Du Bois that various files which had been seized by the police from that solicitor were the subject of legal professional privilege in favour of Mr Du Bois.

His present solicitor was contacted by the administrator’s solicitors seeking to have access to those documents for the purpose of the examination of Mr Du Bois and that of his former solicitor.

The appellant said that he relied upon the order of this Court that his examination would be private and that any documents produced at such an examination would be kept confidential.  As a result he instructed his solicitors not to claim privilege in respect of the documents, provided that satisfactory terms for the inspection and safeguarding of the documents could be agreed.

He said that he further relied upon the order of the Court that the examination would be held in private in instructing his solicitors that they were not to take any point that the order made for his examination was invalid.  He claims that he abandoned an argument that the Court did not have power to make an order for his examination into the affairs of a co-operative incorporated under the Co-operatives Act 1997 (SA) or its predecessor. He also instructed his solicitors not to take any objections to the admissibility of questions and not to take technical objections at the examination.

He said when he was examined on 25 and 26 February 1998 his solicitor acted in accordance with those instructions.

On 9 April 1998 the solicitors for the administrator advised the appellant’s solicitors that an argument was to be heard at 10.00 am on 15 April 1998 before the Master in respect of access to the transcript of examinations.

The letter advised the appellant’s solicitors that Clayton Church Homes Incorporated foreshadowed that an application would be made that future examinations be held in public.

The letter said that the administrator was still considering his position as to whether or not the examination should continue in private in light of the fact that the administrator now administered a deed of company arrangement.

The letter concluded:

“After a consideration of the different interests of each of the parties concerned, both on the issue of whether the examination should be in public or in private and whether access to transcript should be restricted, we have concluded that it will be very unlikely if not impossible to find a position acceptable to all parties.”

The solicitors acting for the appellant responded to that communication on 13 April 1998.  They advised the solicitors acting for the administrator that they were not aware of the appointment nor the application.  I set out the full text of the letter:

“Thank you for your letter of 9 April in which you “remind” us that an argument has been set down in this matter for 2 hours at 10.00 am on 15 April 1998.

We are not aware of the dimensions and nature of the argument which is intended to be heard on this day.  Could you please:

1...... Let us have a copy of those parts of the transcript in which Judge Bowen Pain sets down the matter for argument, and makes whatever orders now apply to public access.

2...... Supply us with a copy of the notice of Clayton Church Homes Inc to which you refer.

3...... Supply to us a copy of any other correspondence you or your client have sent or received to other persons in connection with this issue.

4...... Inform us of when and how notice of this matter was given to us.

At the moment we will be in difficulty in adequately representing our client in arguing this matter on 15 April, certainly at least until we have the information sought.

We would also generally prefer for the argument to be fixed for another occasion, after we have had the opportunity of considering whatever material you supply us.

We look forward to hearing from you as a matter of urgency.”

The administrator’s solicitor responded to that letter by facsimile on 14 April 1998 and advised the appellant’s solicitors that Clayton Church Homes Incorporated’s request for access to transcript was set down on 12 March 1998 if the matter could not be finalised privately.  There had been no order of the Court to that effect.  They further advised the solicitors that Clayton Church Homes Incorporated’s notice took the form of a verbal communication by its counsel to counsel for the administrator.  The facsimile indicated that the first “formal” notice that the administrator’s solicitors received was by way of letter from the solicitors for Clayton Church Homes Incorporated dated 9 April 1998 which the solicitors acting for the administrator received on 14 April 1998.

The facsimile continued:

“That letter indicates that their client intends making oral application that the balance of examinations occur in open Court.  The letter seeks our client’s attitude to their client obtaining access to the transcripts of examinations of Du Bois, Prosser and Manos.  By implication we expect that their application for access extends to the transcript relating to those examinees.”

Messrs Lynch and Meyer, solicitors for Clayton Church Homes Incorporated, also wrote to the appellant’s solicitors on 9 April 1998.  That letter was also received by these solicitors on 14 April 1998.  The letter stated:

“You will be aware that we act for Clayton Church Homes Incorporated who have sought access to the transcript obtained of your client Mr Du Bois.  Our client also intends making oral application that the balance of examinations occur in open Court.

We enclose by way of service upon you an Affidavit of Mr Michael Pelton sworn the 9th April 1998 and filed in support of our client’s Application.

Can you please advise of your attitude to our client obtaining access to the transcript in respect of your client’s examination.  If such Application is opposed please advise the grounds upon which your client opposes.

We look forward to hearing from you as a matter of urgency given the next return date of the 15th April 1998.”

The letter enclosed an affidavit of Mr Pelton, the Chief Executive Officer of Clayton Church Homes Incorporated.

In that affidavit Mr Pelton deposes that Clayton Church Homes Incorporated is a non profit association which, since 4 March 1996, had dealings with the appellant when he traded as Frank Du Bois and Associates.  The dealings with Clayton Church Homes Incorporated and the appellant were for the purpose of investing Clayton Church Homes Incorporated’s funds.

Mr Pelton also says that Clayton Church Homes Incorporated has issued proceedings in this Court in action number 1681 of 1997 against the appellant seeking inter alia a Mareva injunction preventing him from disposing of any of his assets.  A Mareva injunction was apparently made by another Master of the Court on 16 February 1998.

Mr Pelton claims that there is an inter relationship between some of the loans made by Mr Du Bois on behalf of Mypolonga and River Equity and some of the loans made by Clayton Church Homes Incorporated.  It is not important for the purpose of these reasons to understand what is said to be the relationship.

The end result is that Mr Pelton deposes that it may be that Clayton Church Homes Incorporated  has become a creditor of Mypolonga.

In circumstances where Clayton Church Homes Incorporated asserts that some of the loans made by Mypolonga are related to some of the transactions in which it was involved, and that Clayton Church Homes Incorporated may be a creditor of Mypolonga, and where Clayton Church Homes Incorporated has brought proceedings against Mr Du Bois in relation to these same transactions, no doubt it would be in Clayton Church Homes Incorporated’s interests to be aware of the subject matter of the examinations of both Mr Du Bois and the solicitor who previously acted for Mr Du Bois.

The matter came on before the Master on 15 April 1998.  When the matter was called on counsel for the administrator was not present but the administrator was represented by a solicitor.

Counsel for Clayton Church Homes Incorporated said that it was his application for access to the transcript of the examinees;  Mr Du Bois, Mr Manos and Mr Prosser. Mr Prosser’s counsel was also not then present.  He told the court that counsel for the appellant, Mr Mark Rice, intended to apply to adjourn the argument in respect of his client.

Mr Turner who appeared for the auditors advised the court that they were unaware of the hearing until that morning.  In any event, his client did not wish to be heard in relation to the matter except to put the submission that there ought to be consistency within the matter whereby all of the information obtained by the examination process is either public or private.  The auditors then withdrew.

Mr Rice tendered an affidavit sworn on 14 April 1998 of Elizabeth Anne Gall, who is a solicitor in the firm of solicitors acting for the appellant.  She deposed to the recent history and in particular to the fact the appellant’s solicitors were made aware of the hearing in the circumstances which I have already described.

Mr Rice, after a short discussion, indicated that his first position was to seek an adjournment of the matter because of the lateness to his client of notice of the application.  The application for an adjournment was refused.

A little later in the proceedings, Mr Slattery appeared as counsel for Mr Prosser.

Counsel for the administrator then appeared and advised the Master that his application was that the further examinations be held in private.  He said consistent with that application his instructions were that the examinations already carried out, including that of Mr Du Bois and his former solicitor, ought to remain private.  This position was, therefore, adverse to counsel for Clayton Church Homes Incorporated, Mr Keen.

The Master said he would hear the administrator’s application first.

No application was made to adjourn the administrator’s application.  I think it can be fairly said that counsel for the appellant would have seen such an application to be pointless having regard to the refusal of the earlier application to adjourn the application made by Clayton Church Homes Incorporated.

The administrator’s counsel then put submissions for the further examinations to be held in private.  Those submissions were interrupted by counsel for Clayton Church Homes Incorporated who indicated that his client appeared on these applications to obtain access to the transcripts already taken and in opposition to the administrator’s application in its capacity both as a creditor of Mypolonga and as simply a member of the public.

After some debate the Master said that he would hear Clayton Church Homes Incorporated only as a member of the public.

Counsel for the administrator completed his submissions and Mr Rice was asked whether he wished to say anything.  The transcript records (at p18):

“MR RICE:................. I would say that ordinarily I would go after Mr Keen because he is seeking access, he is making an application for access to my client’s transcript.  I do have submissions to make.

HIS HONOUR:.......... At the moment I am dealing with Mr Lane’s application that the examinations continue in private.

MR RICE:         And I support that.

HIS HONOUR:.......... I am asking you whether you want to put anything specific.

MR RICE:................... Not on that, but in response to Mr Keen’s submissions I would like to make some submissions.

MR SLATTERY:........ We would also support Mr Lane’s application.  I have nothing to add.”

......... Immediately following that, and without calling upon counsel for Clayton Church Homes Incorporated, His Honour gave ex tempore reasons for dismissing the administrator’s application.

......... In those reasons he said:

“I therefore dismiss the administrator’s application for extension of the orders as to confidentiality in the sense of the examinations being conducted in private.  It has been suggested by Mr Lane, on behalf of the administrator, that the order made with regard to the hearings being in private carried with it a concomitant right, or obligation, on the parties that they would not discuss the matter with other persons.  In so far as any such right or obligation existed, I lift that as from the present time.”

Those remarks concluded the Master’s ex tempore reasons.

Counsel for Clayton Church Homes Incorporated then asked the Master whether his reasons meant that the transcripts of examinations which had already taken place were now public.  The Master said they were.

Mr Rice then protested that he had not been heard in respect of Clayton Church Homes Incorporated’s application, which had apparently been decided by the Master at the same time as the Master decided the application made by the administrator.  He sought a stay of the Master’s order and, in so far as it was necessary, leave to appeal.  During that application for a stay the Master said that he had not dealt with Clayton Church Homes Incorporated’s application at all.

With respect to all concerned, the matter was confused and the result is confusing.

The reason for the confusion arises out of the failure of each of the parties to properly articulate in writing the applications which each of them wished to make.  As a result there was no structure in the hearing before the Master and, in my opinion, a number of errors resulted.

The Master should have required Clayton Church Homes Incorporated to make an application in writing supported by evidence as to why it was entitled to the transcripts of the examination which had already taken place.  He ought to have required Clayton Church Homes Incorporated to give proper notice to those who might be affected by such an order.  The appellant was entitled to be put on notice as to the application and the grounds of that application.  However the appellant did not receive proper notice of whatever application it was that Clayton Church Homes Incorporated was to make. 

Moreover, the Master ought to have required the administrator to identify precisely the orders which the administrator sought and should have required the administrator to give proper notice to each of the other parties of that application.  It might have been necessary to have abridged the time for the hearing of that application but that is another matter.

It ought to have been made perfectly clear to all of the parties which of the applications was to be heard and the orders which were sought.  As it happened, the Master heard the liquidator’s application first and, in doing so, apparently determined, notwithstanding he said otherwise, the application made by Clayton Church Homes Incorporated.  The appellant was not given notice that that might be a consequence of the hearing of the administrator’s application.  Indeed, the appellant by his counsel merely supported the application made by the administrator not knowing or realising that the Master intended to decide the future status of the transcripts already taken.

In my opinion, the hearing before the Master miscarried, and the appellant was denied natural justice.

Speaking for myself, I would have allowed the appellant an adjournment in the first instance.  That is because I think, whilst each of the other parties had given adequate notice to each other, they had failed to give proper notice of the application to the appellant.  However, the question of whether or not to grant an adjournment involved the exercise of the discretion of the Master and in that respect I cannot say that he has erred.

However, I do believe that, after the refusal of the adjournment, the hearing did miscarry for the reasons I have mentioned.  In my opinion that ground of appeal complaining of the Master’s failure to allow the appellant to put submissions and evidence in respect of the matter in which he was interested, must succeed.

Mr Rice, who also appeared on this appeal, argued in those circumstances I merely ought to allow the appeal and remit the matter to the Master for further hearing.

This appeal is a re-hearing: Supreme Court Rules 97.17.  As such it involves a re-hearing of the matter at the date of the appeal.  On a re-hearing the court will decide the matter on the law as it stands at the time of the hearing of the appeal and upon the evidence adduced in the court below and on the further evidence which the court in its special power has received on the appeal:  Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 per Mason J at 619.

The parties have had a full opportunity to put all submissions upon the issue of whether or not the application by Clayton Church Homes Incorporated for access to the transcripts of the appellant in his examination on 25 and 26 February should be granted. The appellant has put before me all of the evidence which he wished to put before the Master in opposition to the application made by Clayton Church Homes Incorporated.  I have received that evidence to which I have referred earlier in these reasons.

It is in the parties’ interest, both in terms of time and cost, that this matter be disposed of as soon as possible.  I therefore believe it is appropriate for me to decide whether Clayton Church Homes Incorporated should be entitled to access to the transcript of the examination of the appellant.  If I decide that access should be granted, then it would be appropriate to dismiss the appeal because that is the order that the Master would have made if he had allowed the appellant to adduce all of the evidence he wished to adduce before the Master.  On the other hand, if I reach the conclusion that Clayton Church Homes Incorporated is not entitled, or should not be entitled, to access to those transcripts, then the appeal should be allowed and the order made by the Master set aside.

Section 597(4) provides that an examination conducted under Division I of 5.9 of the Corporations Law is to be held in public except to such extent as the court considers that by reason of special circumstances it is desirable to hold the examination in private.

On 12 February 1998, although reasons were not given, the Master must have concluded that there were special circumstances for the appellant’s examination to be held in private.

The provisions of s597(4) of the Corporations Law make it clear that ordinarily an examination of this kind would be held in public.  It is only if a court considers that there are special circumstances which make it desirable that the examination be held in private that the examination is held other than in public.

An examination usually takes place in public because the power to order a person to submit to such an examination has been considered to be for the benefit of the general public, the benefit of those who invest in public and private companies and for those who enter into a commercial arrangement with public and private companies.

There will be circumstances (if they are special), however, where it will be appropriate to conduct the examinations in private.  Those circumstances might attach to the proposed examinee or to the eligible applicant who is conducting the examination.

I identified the circumstances in which an eligible applicant might seek to have an examination conducted in private in Re Southern Equities Corporation Limited (In Liq);  Bond & Anor v England (1997) 25 ACSR 394 at 434. I said:

“There may be any number of reasons why a liquidator might seek to have an examination conducted in private. The liquidator may wish to keep the very fact of the examination from other persons, or the liquidator may wish to keep private the topics upon which the examination is conducted to prevent publication to other persons who may be subject to further examinations. The liquidator may be of the view that publication of any information in relation to the fact of the examination or the examination itself may subvert his or her administration of the corporation. A hearing will be held in private only if the court considers that there are special circumstances which make it desirable to hold the examination in private: s597(4).”

There may be circumstances whereby the conduct of an examination in public might cause irremedial harm to a proposed examinee.  In those circumstances it might be appropriate to conduct the examination which otherwise would be conducted in public, in private.

There could be any number of commercial or other reasons for examinations to take place in private.  The reasons might be peculiar to the eligible applicant, the company, the proposed examinee or a third party.  The only test is whether there are special circumstances which make a private examination desirable.

There may be special circumstances whereby an examination will commence in private but where those special circumstances cease to exist.  If that is so, then the matter would thereafter proceed in public.  It is only whilst the special circumstances exist that any examination should take in place in private.

Section 597(14A) provides:

“A written record made under subsection (13):

(a)     is to be open for inspection, without fee, by:

(i)     the person who applied for the examination;  or

(ii)    an officer of the corporation;  or

(iii)   a creditor of the corporation;  and

(b).... is to be open for inspection by anyone else on paying the prescribed fee.”

......... Section 597 (13) provides:

......... “597(13) [Signed written record]  The Court may order the questions put to a person and the answers given by him or her at an examination to be recorded in writing and may require him or her to sign that written record.”

An examination, whether it is conducted in public or private, may be recorded in writing. In fact in this State, as I would expect in all States, all examinations are recorded in writing. The practice in this State is to require an examinee to sign the written record. All private examinations are recorded in writing. Section 597 (14A) makes that written record available to the persons mentioned in the section.

The subsection differentiates between the classes of persons identified in paragraph (a) and the public in paragraph (b).

The only point of distinction is that those closely connected with the corporation, being the eligible applicant, the officers of the corporation and any creditors of the corporation are entitled to inspect the written record without paying any fee.  Any other person is also entitled to inspect the record but only on paying the prescribed fee.  The reason for the distinction is clear enough.  Those closely identified with the company should be entitled to inspect the record without cost.  Anyone else should be entitled to inspect the record, because it is a public record, but at a cost to cover the cost generated by the production of the record.

If the examination is held in private s597(14A) does not preclude any particular party from inspecting the written record. In particular it does not prevent a member of the public from inspecting that record. The power to prevent inspection of the written record is given by section 596F(1)(e).

If an examination is held in private it would seem to me to be appropriate that an order would go restricting access to the record of the examination to those who were allowed to be present at the time of the private examination.  It is the court who may direct who may be present at an examination while it is being held in private (section 596F(1)(c)). 

In this case, no such order was made. Strictly speaking, I suppose, in those circumstances Clayton Church Homes Incorporated, being a person entitled under section 597(14A)(b), would, if it paid the prescribed fee, be entitled to inspect the written record. No doubt if it had made that application on or about 12 February then an order would have been made under section 596F(1)(e) restricting Clayton Church Homes Incorporated’s access to the record of the examination.

I think, however, that if a court does order that an examination is to be held in private, it ought to consider making an order under section 596F(1)(e) if it also intends that the record of the examination be restricted whilst the examination takes place in private.

In any event, in this case, all of the parties assumed that because the examination was in private, the only party entitled to the record of the interview was the administrator.  It was assumed by all parties that whilst the examinations remained in private no other party would be entitled to access the transcript of the examinations.

The appellant claims that because he was advised through counsel for the administrator that the examination was to take place in private, and because an order of the court was made that the examination take place in private, and because he acted upon that information to his detriment, no order can now be made that any party apart from the administrator have access to the transcript of his examination.

That argument cannot be correct.

It cannot be correct for three reasons.  First, an assumption by the appellant that because his examination was to be held in private meant that nobody, apart from the administrator, could ever have access to the records was unreasonable.  Secondly, the assumption made by the appellant and the consequences of that assumption in waiving legal professional privilege, and instructing his solicitors and counsel not to take various points, were never made known to the court prior to his examination.  Thirdly, the assumption and the consequences were never made known to those who had an interest in obtaining the transcript.

The appellant was not, in my opinion, entitled to assume that simply because his examination was to be held in private no other party would ever be entitled to access the transcript of that examination.  The best he was entitled to assume was that, at the time of his examination, special circumstances existed for the examination to take place in private.  He could not even assume that the whole of his examination would take place in private.  The best he could assume was that at the time that the examination commenced special circumstances existed for the examination to take place in private.  If those special circumstances ceased to exist then he should have assumed that thereafter the examination would take place in public.  That is what the Act says and that is the assumption he should have made.

He could not have assumed that simply because his examination took place in private that the transcript would always remain unavailable to any party, apart from the administrator.  Indeed, he must have assumed that the administrator was conducting this examination because the administrator was intending to bring civil proceedings or cause criminal proceedings to be brought against him.  In those circumstances, he must have assumed that there was a real possibility that transcript would thereafter become public, either in the civil or criminal proceedings.

He could not have reached the assumption he did if he had read section 596F.  Clearly that section gives power to the court to admit persons, apart from the administrator, at an examination even if it is being conducted in private.  It further allows the Court to permit access to the record of the examinations held in private to those to whom the court believes should have access.

The appellant could not have assumed that the administrator would not show the transcript to the creditors of Mypolonga and River Equity for the purpose of obtaining instructions whether to proceed with civil proceedings or to cause criminal proceedings to be brought.  He could not have assumed that transcript would not be shown to those who would make the decision whether criminal proceedings would be brought.

In my opinion, the appellant had no right to assume that this transcript would only ever become available to the administrator.  He should have assumed that any number of persons, including the present applicant, might seek to have access to the transcript.

He was not entitled, in my opinion, to enter into an arrangement with the administrator which would, without that arrangement being referred to the court prior to the examination by the court, bind the court.  It is for the court to decide whether an examination will take place in private and who will have access to the record on the examination.  The court will only allow the examination to take place in private if it is satisfied that special circumstances exist.

If the court has first determined that special circumstances exist and the examination should take place in private, the court would usually restrict access to the record of the examination.  It would be inconsistent with a private examination to allow public access to the record of the examination.  That does not mean, however, that access would be limited only to the administrator. There are a number of persons who would still be entitled to have access to the record of the examination even though the examination took place in private.  It would depend upon the special circumstances which gave rise to the examination being held in private.  If the special circumstances are of the kind that I identified in Re Southern Equities (supra) then in my opinion any number of persons might, in due course, have access to the record of the examination. Indeed, when the eligible applicant no longer wishes to have the matter kept private because either the examinations are at an end or it would be futile to have the further examinations in private, then it seems to me that all members of the public who are prepared to pay the prescribed fee as required under section 597(14A)(b) would be entitled to access to the record of those examinations. If, however, the special circumstances arose out of circumstances peculiar to the proposed examinee, then there may be some smaller class of persons who will be entitled to access the record of examination.

In any event it was not for the appellant to enter into an arrangement which he would later use to attempt to restrict the court’s power to order access to the record of the examination.

The appellant was not entitled to enter into an arrangement with the administrator which would bind the Court or restrict its power, nor was he entitled to assume that any arrangement with the administrator could act to the disadvantage of a creditor or officer of Mypolonga or River Equity or a member of the public.

Section 597(14A) gives rights to all members of the public to inspect a written record of any examination, whether it is held in public or private. An examinee and an eligible applicant cannot enter into some private arrangement to defeat the rights of all members of the public. It is for the Court to decide whether an examination is to be held in private, and who may be present at that private examination and whether access to the written record of a private examination should be restricted.

In my opinion there is no doubt that the court does have power to convert a private examination into a public examination and does have a power to direct that evidence adduced and documents produced on that private examination be treated as though no order that the examination be held in private has been made:  Re Country Stores Pty Ltd (In Liq) (1988) 6 ACLC 376; Re Lazar International Pty Ltd (1990) 8 ACLC 173.

Not only does a court have that power, in my opinion the court is obliged to exercise that power and require a private examination to continue in public if the special circumstances which gave rise to the initial order for the examination to be held in private have ceased to operate.

A court also has power to direct that an examination which has been conducted in public continue in private.  However, that power would only be exercised if special circumstances make it desirable for the examination to continue in private.

A court also has power to direct that a written record made under s597(13) and documents produced are not available to any class or classes of persons. So also does it have power to lift that order. It has a discretion to give directions in that regard. It will give those directions having regard to the purpose of the section which is to allow for the examination of the class of persons in s596A or s596B by an eligible applicant in public. In the exercise of that discretion it will have regard to whether special circumstances make it desirable that an examination take place in private and whether, if it is to take place in private, it is appropriate to restrict access, except to the eligible applicant to the examination, to the written record of the examination and documents produced at the examination.

In my opinion, the Master was right to conclude that there were no special circumstances existing which would necessitate otherwise public examinations being held in private.

He was also right to conclude, although he erred in not hearing argument on this point, that the fact that the examination of the appellant was conducted in private did not prevent Clayton Church Homes Incorporated having access to the transcript of that examination.

In my opinion, therefore, whilst the appellant has been denied procedural fairness before the Master, inevitably the result would have been as the Master decided.

In those circumstances it would be inappropriate to allow the appeal and remit it to the Master for further hearing.

The appropriate course is to dismiss the appeal and I so order.