Hellen, J. v Lamb, K.W

[1994] FCA 330

330 4Y-

JUDGMENT No. ........ ........ . J , ......,

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) No. VG3310 of 1993
GENERAL DIVISION	)

IN THE MATTER of TEXEL PTY
LTD (IN LIQUIDATION)

(A.C.N. 006 835 918)

BETWEEN:  JOSEPH HELLEN

Applicant

&Q:  KENNETH WAYNE LAHB

Respondent

C O W :	Jenkinson J.
PLACE :	Melbourne
m:	27 May. 1994

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. There be until further order a stay of the operation of each of the orders contained ln paragraphs 1 and

   3 of the order made on 13 May 1994.

2. The order contained in paragraph 4 of the said order be varied by substituting for "27 May 1994" the words "a date to be specified by further order or to be agreed between the applicant and the respondents".

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1. There be until further order a stay of operation of each of the directions and rulings to which reference is made in the order contained in paragraph 1 of the order made on 13 May 1994.

2. Each party's costs of the motion of which notice was filed on 24 May 1994 be reserved.

5.        The further hearing of the said motion be adjourned to a date to be fixed by either party on reasonable notice to the other party.

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	1 No. VG3310 of 1993
GENERAL DIVISION	1

IN THE MATTER of TEXEL PTY - - - - - - -

LTD (IN LIQUIDATION)

(A.C.N. 006 835 918)

BETWEEN :  JOSEPH HELLEN

Applicant

m:  KENNETH WAYNE LAMB

Respondent

-:	Jenkinson J.
M:	Melbourne
m:	27 May, 1994

REASONS FOR JUDGMENT

Motion for stay of orders pending appeal against the

orders to a Full Court.

The orders were made by me on 13 May 1994 and on

that day reasons for their making were published. These

were incorporated in this statement of reasons.

reasons are to be read as if the orders and reasons of 13 May

The applicant (that is the applicant liquidator on whose application the summonses for examination and for production were issued) contends, but Mr. Hellen denies, that the orders I made are interlocutory. The language employed in the principal authority on that question to which I was

referred, C a r r v . Finance C o r m r a t i o n o f A u s t r a l i a Limi tee/

(No. 11 (1981) 1 4 7 C.L.R. 2 4 6 , is expressed in reference to a

conclude certain rights of those partles inter se. The order by which that final determinat~on is achieved is said to be not interlocutory, whereas various applications are heard and determined in the course of bringing a proceeding to that final determination by orders which are said to be interlocutory. Here the examination of Mr. Hellen is a proceeding in the course of the winding up of Texel Pty.	proceeding inter partes, the final determination of which w ~ l l the final determination of which will necessarily conclude rights as between Mr. Hellen and another person or between the liquidator and another person, nor of course is the examination such a proceeding. The proceeding whlch each of them instituted, in each case to review a deputy registrar's exercise of a power of the court, and which was determined by the orders I made, is in my opinion a proceeding inter partes, the final determination of which has concluded certain rights
of those parties inter se: the right to have an answer to a	question of a certain description and the right to examine
certain documents.	I think that the orders I made are not

interlocutory.

If am in wrong in that opinion I would expect that leave to appeal would be granted. This is not a common interlocutory decision on a point of practice. Here in question are several decisions, each a decision determinative of a substantive right to privacy where that right may have to

be subordinated to the public interest which is asserted very frequently under Division 1 of Part 5.9 of the Cormrations - Mr. Hellen seeks to displace the exercise of a Law. discretionary judgment, it is true, and there are indications in authorities to which counsel for the liquidator referred that the public interest in exposing breaches of duties owed to companies by their controllers, and in enabling recovery of the property of insolvent companies, 1s to be accorded very substantial weight in the exercise of that judgment. But I am not convinced that the state of present authority makes otiose further guidance by an appellate court as to the balancing of the competing public and private interests. If the question as to where a civil proceeding is to be tried merits the careful evaluation of discretionary considerations whlch the Full Court ordained in National Mutual Holdings Ptv. Limited

v. The Sentrv Cormration (1988 19 F.C.R. 155, no less anxious

and ample a consideration is due of the question whether in the circumstances disclosed by the evidence in this case a person must disclose under oath information of the kind here

misapprehended some of the evidence. If so, that may have in question. Further, it is a ground of appeal that I

caused injustice which should be corrected.

Unless a stay is granted, the setting aside of the orders I made will be nugatory, at least in respect of the documents to which those orders relate. The balance of convenience is in favour of a stay. Even if a stay were refused, the six month period to which reference is made in

paragraph 17 of the affidavit of Graeme Michael Lawry sworn 25 May 1994 is practically certain to expire before the proceeding contemplated in that paragraph could be instituted. I will order that there be until further order a stay of the operation of each of the orders contained in paragraphs 1 and

3 of the order made on 13 May 1994.

I will further order that the order contained in paragraph 4 of the said order be varied by substituting for

"27 May 1994" the words "a date to be specified by further

order or to be agreed between the applicant the respondents". There will also be an order that there be until further order a stay of operation of each of the directions and rulings to which reference is made in the order contained in paragraph 1 of the order made on 13 May 1994. If the applicant apprehends that the appeal or any application for leave to appeal is not being prosecuted with diligence, or that any request by the applicant for a speedy hearing of the appeal or of any such an application for leave to appeal is being unreasonably hindered by Mr. Hellen, application may be made to me or another judge for discharge of the orders made today. There will be an

order that each party's costs of the motion of which notice was filed on 24 May 1994 be reserved, and there will be an order that the further hearing of the said motion be adjourned

to a date to be fixed by either party on reasonable notice to
the other party.

I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Jenkinson.

Associate

Dated: 27 May, 1994

Mr. P.R. Hayes Q.C. and Mr. M.L. Sifris instructed by Clayton

Utz for the Applicant

Mr. G.A.A. Nettle Q.C. and Mr. N. Mukhtar instructed by

Phillips Fox for the Respondent

Date of Hearing: 26 May, 1994