Hughes, in the matter of Sales Express Pty Ltd (In Liq) (No 2)

[2016] FCA 426

FEDERAL COURT OF AUSTRALIA

Hughes, in the matter of Sales Express Pty Ltd (In Liq) (No 2) [2016] FCA 426

File number:

QUD 238 of 2016

Judge:

EDELMAN J

Date of judgment:

26 April 2016

Catchwords:

CORPORATIONS – application by liquidator for confidentiality orders concerning applications by liquidator under s 477(2B) of the Corporations Act 2001 (Cth) for approval of litigation funding agreement with creditor and applications under ss 596A and 596B of the Corporations Act for the issue of examination summonses

Legislation:

Corporations Act 2001 (Cth) ss 477(2B), 596A, 596B

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a)

Cases cited:

Hughes, in the matter of Sales Express Pty Ltd (in Liq) [2016] FCA 423

Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 498

Date of hearing:

26 April 2016

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

8

Solicitor for the Applicant:

Mr AWM Myers of Results Legal

ORDERS

QUD 238 of 2016
IN THE MATTER OF SALES EXPRESS PTY LTD (IN LIQUIDATION) (ACN 006 680 315)
RICHARD JOHN HUGHES AS OFFICIAL LIQUIDATOR OF SALES EXPRESS PTY LTD (IN LIQUIDATION) (ACN 006 680 315) Applicant
JUDGE:	EDELMAN J
DATE OF ORDER:	26 APRIL 2016

THE COURT ORDERS THAT:

1.Until completion of the examinations referred to in orders 4 and 5 of the orders of this Court on 26 April 2016, no person be permitted to inspect or make a copy of:

(a)the affidavits of Richard Hughes affirmed 5 April 2016, Anthony Steven Cocolas affirmed 18 April 2016 or Alex Walter Maxwell Myers affirmed 18 April 2016; or

(b)the submissions dated 20 April 2016 and 26 April 2016 filed with these applications

without a further order of this Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

EDELMAN J:

1. At a hearing this morning, the liquidator sought orders including an order under s 477(2B) of the Corporations Act 2001 (Cth) that the applicant, as liquidator of Sales Express Pty Ltd (in liquidation) ACN 006 680 315 (Sales Express), be granted approval to enter the deed entitled “Funding Agreement”, in the terms annexed to the affidavit of Mr Richard Hughes at pages 493-503, on behalf of the Company. The liquidator also sought orders under ss 596A and 596B of the Corporations Act that a summons be issued to a number of individuals to attend before the Federal Court of Australia at Brisbane at a time and date to be fixed to be examined about the examinable affairs of Sales Express. The liquidator was informed that those summonses must be issued by Tuesday 3 May 2016.

2. After a brief adjournment following the completion of the hearing, I provided the liquidator with my reasons granting that approval: Hughes, in the matter of Sales Express Pty Ltd (in Liq) [2016] FCA 423. The liquidator foreshadowed, and has now applied for, orders restricting access to information in relation to these applications and delaying publication of my reasons.

3. Section 37AF of the Federal Court of Australia Act 1976 (Cth) provides a power for the Court to make a non-publication order or a suppression order, and such orders as appropriate to give effect to non-publication or suppression, prohibiting or restricting publication or other disclosure of materials including information that relates to a proceeding before the Court and information filed with the Court.

4. These are the types of proceedings in which, as Barrett J said in Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 498 [2], involve a commercially sensitive subject matter of the applications such that an applicant “protecting its own interests and the integrity of the litigation process in which it is engaged, would take particular care to keep from the other party or parties to the litigation”. Even more fundamentally, the matters to which I refer in my reasons for decision, and the information contained in the submissions and affidavits before me on the funding application and examination summons application, have the potential to prejudice the conduct of the examinations if they are not suppressed.

5. In this case, it is appropriate that I make an order under s 37AF to prevent prejudice to the proper administration of justice (s 37AG(1)(a)) suppressing the publication of my reasons and the material filed on the applications until after the examinations are completed. At the hearing in relation to these confidentiality orders, the solicitor for the liquidator properly conceded that there was no reason why the suppression should continue after the completion of the examinations.

6. For these reasons, my reasons for decision in Hughes, in the matter of Sales Express Pty Ltd (in Liq) [2016] FCA 423 will not be published until after completion of the examinations.

7. The further order that should be made is:

   Until completion of the examinations referred to in orders 4 and 5 of the orders of this Court on 26 April 2016, no person be permitted to inspect or make a copy of:

   (i)the affidavits of Richard Hughes affirmed 5 April 2016, Anthony Steven Cocolas affirmed 18 April 2016 or Alex Walter Maxwell Myers affirmed 18 April 2016; or

   (ii)the submissions dated 20 April 2016 and 26 April 2016 filed with these applications

   without a further order of this Court.

8. These reasons concerning confidentiality will be published on Tuesday 3 May 2016 after the issue of the examination summonses.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.

Associate:       

Dated:       26 April 2016