Hartogen Energy ltd v Australian Gas Light

[1992] FCA 867

JUDGMENT NO. ,..2G1rn~ %

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 667 of 1990

1

GENERAL DIVISION 1

BETWEEN: HARTOGEN ENERGY LIMITED

(in liauidation)

First Applicant

ACTRAINT NO. 71 LIMITED

(in liauidation)

Second Applicant

BRIAN RAYMOND SILVIA AND
WARREN PANTZER as liquidators of

the First and Second A~~licants

AND :  THE AUSTRALIAN GAS LIGHT

First Respondent

AGL PETROLEUM LIMITED

Second Respondent

INTERNATIONAL OIL PROPRIETORY

Third Respondent

JOHN EDWIN HOOPER as Secretarv
for the time beina of the

Australian Gas Liaht Company

Fourth Respondent

AND :  JOHN EDWIN HOOPER as Secretary
for the time beina of the
Australian Gas Liaht Com~anv

h

REASONS FOR JUDGMENT (EX TemDOre)

Cross Claimant

ACTRAINT NO. 71 LIMITED (IN

LIOUIDATION)

First Cross Respondent

HARTOGEN ENERGY LIMITED (IN

LIOUIDATION)

Second Cross Respondent

CORAM:	GUMMOW J.
PLACE :	SYDNEY  C; FEDERAL 2 7 NOV OOURT 1992 OF
DATE :	13 NOVEMBER 1992

A U ~ U	.I
PFIINUPAL
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4

HIS HONOUR:

Paragraph 1 of the Notice of Motion filed 6 November 1992 seeks further answers by the respondents in relation to certain interrogatories filed 16 September 1992. In argument today these have been called "Interrogatories 1". An order in terms of paragraph 1 of the short minutes which I will initial, date and place with the papers, accurately reflects the rulings I made this morning.

That leaves paragraphs 3 and 4 of that motion. These are directed to Interrogatories 2. The applicants seek answers to be verified on behalf of the respondents by 7 persons. Mr Beeren was an officer of the first respondent, as was Mr Clare. Mr Davenport was Chairman of Directors of the first respondent, Mr Williams was Managing Director and Mr Mason was a Director. Mr Binsted and M r Jephcott were officers of Lloyds Corporate Advisory Services Pty Ltd engaged by the respondents to advise them on the tenders for the sale of the

Paringa shares and to conduct the tender on their behalf. The

nature of the dispute with which this litigation is concerned is summarised in an earlier interlocutory judgment, now

reported (1992) 109 ALR 177 at 180-181.

In seeking to proceed in this way, with the designation of particular persons in the first instance to answer the interrogatories on behalf of the respondents, the applicants had in mind what was said by several members of the High Court in Smith Kline and French Laboratories Limited v Inter- continental Pharmaceuticals (Australia) Ptv Ltd (1969) 123 CLR 514 at 520, 522. In the circumstances now before me an order in this form is appropriate.

The principal objection by counsel for the respondents was not based upon this particular procedure. The main subject of contention was whether, to put it broadly, the course adopted by Cole J in the Commercial Division of the Supreme Court of New South Wales in S~edlev Securities Limited (in liauidationl v B A Yuill (No. 4 1 (1991) 5 ACSR 758 should be adopted here. In that case, as here, a question arose as to the administration of interrogatories where a transcript had been taken of examinations pursuant to S. 541 of the

Com~anies (New South Wales) Code.

In framing Interrogatories 2 the applicants have sought
to give effect in the circumstances of the present case to

what was said by Cole J in the first paragraph on p. 762.

Counsel for the respondent objected to this course and to its	possible effect on the conduct of the trial. Counsel for the
applicants pointed to what he said was severe prejudice to their case, which is brought by liquidators, if Interrogatories 2 were not allowed in this way. I will not recapitulate what was put this morning and since the resumption. However, I was impressed, in particular, by what
M r Ellicott submitted after lunch.
Having heard the strong and cogent submissions both for and against this course I have decided, on balance, that it is one that should be followed. However, this is subject to the deletion (as oppressive) of para 3 from the three basal questions laid out on page 2 of the draft notice. This is Annexure C to the motion filed 10 April 1992.
Accordingly, I propose to add to the short minutes as order lA, "order in terms of paragraphs 3 and 4 of the Notice of Motion filed 6 November 1992 but inserting in paragraph 3 the words "but deleting para 3 on page 2 thereof", after the words "filed 10 April 1992."
[Counsel addressed]
I will read out the orders. I do think there is any need to reserve liberty to apply on 3 days' notice.

The orders are

1.    Order that pursuant to para 1 of the applicant's Notice of Motion filed 6 November 1992, the respondents, on or before 11 December 1992 file and serve further and better answers to Interrogatories 5, 6, 10(b) and 10(c), ll(b) and ll(c), 12, 13, 30 and 31 contained in the applicants' Notice to Answer Interrogatories being Interrogatories 1.

1A. Order in terms of paras 3 and 4 of the Notice of Motion filed 6 November 1992, but inserting in para 3 the words "but deleting para 3 on page 2 thereof" after the words "filed 10 April 1992."

2.   Direct that the proceeding be listed for further directions on 10 December 1992 before me 10.15am.

1. The motion filed 6 November 1992 otherwise be dismissed.

2. No order as to costs of that motion.

3. Extend until 4 December 1992, pursuant to 0. 52 r. 10 sub-r. 2, the time for filing any application for leave to appeal from order 1A.

   I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Gununow.

Associate: /$c/& &j

Date: 13 November 1992

Counsel and Solicitors	Mr R J Ellicott QC and
for the Applicants:	Mr R W White instructed by Corrs Chambers Westgarth
Counsel and Solicitors	Mr D E Horton QC and
for the Respondents:	Mr G C Lindsay instructed by Freehill Hollingdale & Page