England v Caboche No. Scgrg-93-92516 Judgment No. S425

[1999] SASC 425

RE: SOUTHERN EQUITIES CORPORATIONS LIMITED (IN LIQUIDATION)
ENGLAND v CABOCHE
[1999] SASC

1. LANDER J       This is an appeal by a liquidator from a decision of a Master, whereby the Master made an order that the liquidator's application to further examine Delores Jean Caboche be dismissed.  At the same time he made a further order refusing Ms Caboche's counsel's application to cross-examine a deponent to an affidavit in those proceedings, but that order is not relevant for the purpose of the reasons which I am about to give. 

2. When this matter was called on the appellant sought leave to introduce fresh evidence.  I have heard argument about the admissibility of that evidence.  I indicated to the liquidator's counsel that I would admit an affidavit of Jason Demetrios Karas, sworn on 16 September 1999, and all of the exhibits to that affidavit, but upon terms, to ensure no unfairness to Ms Caboche.   Mr Conti QC, who appears for Ms Caboche, said that if I was to admit the affidavit to which he objected, then his client would need an adjournment to consider some of the material disclosed in the affidavit. 

3. At the same time, he also indicated that if the document was admitted, his client wished to invoke r 59.02 to obtain copies of the documents referred to in that affidavit.  

4. Following receipt of Mr Karas' affidavit, Ms Caboche's solicitors gave a notice to produce documents to the liquidator's solicitors.  In that notice, Ms Caboche's solicitors relying upon r 59.02 sought the production of several classes of documents. 

5. Rule 59.02 provides:

   “Where a party has filed a pleading or an affidavit referring to a document, he shall within 7 days of receipt of any request from another party in accordance with the request either make such document available for inspection by that other party or furnish that other party with a copy of the document at that party's costs.”

6. Rule 59.03 provides:

   “An order for the production of any document or copy thereof shall not be made unless the Court is of the opinion that the order is necessary for disposing fairly and expeditiously the action and is not injurious to the public interest.”

7. In Beneficial Finance Corporation v Price Waterhouse (1996) 68 SASR 19, as a member of the Full Court, I said that r 59.02 and r 59.03 had to be read together, and that the mere referral by a party to a document in a pleading or an affidavit would not be necessarily, of itself, sufficient to require that party to provide that document to that party's opponent. That is still my view.

8. In this appeal the question is whether or not the liquidator has exhausted all of his rights in relation to examinations of Ms Caboche under s 596 of the Corporations Law, or if, by proceeding with the application before the Master and this appeal the liquidator is not guilty of oppression. 

9. In order to show that he has not been guilty of any oppression towards Ms Caboche, the liquidator has furnished the affidavit of Mr Karas, to which I have referred.  That affidavit has been tendered to show that the liquidator has a further purpose for the examination. 

10. In that affidavit, Mr Karas has deposed to investigations which have been made recently in the United States, as a result of which a number of documents have been obtained. Those documents, he says, show that a number of defendants in other proceedings are indebted to the company in the sum of at least $US600,000 and perhaps $3.2 million.  The evidence which has been obtained in the United States has been obtained upon subpoena and I think oral depositions. 

11. In his affidavit, Mr Karas refers to the documents produced pursuant to the Texas subpoenas, and then asserts that a number of facts follow.  Ms Caboche is not in a position to test the accuracy of those assertions without reference to the documents which are referred to in the affidavit. 

12. Clearly the documents come within r 59.02 being documents referred to in an affidavit, and, in my opinion, it is necessary to make an order in the interests of justice and fairness to Ms Caboche, to make those documents available to her for the purpose of fairly and expeditiously disposing of these proceedings.   She will then be in a position to determine whether the assertions made in the fresh evidence, which has been admitted, are correct. 

13. I therefore order that the liquidator make available to Ms Caboche's solicitors the documents referred to in par 8 of Mr Karas’ affidavit of 16 September 1999 for inspection, and make available a copy of the documents to those solicitors at Ms Caboche’s cost.