Glaister v Banwell Pty Ltd (ACN 009 394 585) (Subject to a Deed of Company Arrangement)

The plaintiff, Donald Glaister, sought leave to proceed with an action against the defendant, Banwell Pty Ltd, which was subject to a Deed of Company Arrangement (DOCA). The dispute arose from an incident on 3 March 2000 when Mr Glaister fell from a ramp while disembarking from the ferry "Seaflyte" at Rottnest Island, alleging negligence by the defendant's servants or employees. The defendant had entered administration, and a receiver and manager were appointed, leading to a stay of the District Court proceedings. The plaintiff applied for leave to proceed against the defendant under section 444E(3) of the Corporations Act, and to discover any public liability insurance policy held by the defendant that could cover the plaintiff's claim.

The legal issues before the court were whether the plaintiff should be granted leave to proceed against the defendant under the Corporations Act and whether the defendant should disclose any relevant insurance policies. The court had to apply principles derived from cases concerning leave to proceed against a company in liquidation to determine if similar considerations should apply to a company under a DOCA.

The court granted the plaintiff leave to proceed against the defendant, noting that the principles applied in leave to proceed cases for companies in liquidation could be analogous to those for companies under a DOCA. The court observed that the absence of evidence regarding the defendant's insurer suggested the presence of an insurer, making it unlikely that the action would prejudice the creditors or the company. Additionally, the court ordered the defendant to produce any relevant public liability insurance policy, reasoning that the plaintiff was entitled to such discovery for the proper disposition of the originating process, and this was necessary before any judgment could be enforced.

The court's final orders included granting leave to the plaintiff to proceed with the action in the District Court, imposing conditions that the plaintiff not execute on any judgment without the leave of the Supreme Court, and requiring the defendant to disclose any relevant insurance policy. The court further noted that it would hear the parties on the precise form of orders and the allocation of costs.