In the Matter of Absolutely Fabulous Exhibitions and Events (Management) Pty Ltd (in liq) ACN 064 673 570 Fiorentino, Pino v Irons, Roslyn Marrietta

[1997] FCA 1215

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3204 of 1997

IN THE MATTER OF:
ABSOLUTELY FABULOUS EXHIBITIONS & EVENTS (MANAGEMENT) PTY LTD (IN LIQUIDATION) ACN 064 673 570

BETWEEN:

PINO FIORENTINO
APPLICANT

AND:

ROSLYN MARRIETTA IRONS
FIRST RESPONDENT

ROBERT STEWART FRANCIS DWYER
SECOND RESPONDENT

ALLAN REGINALD DWYER
THIRD RESPONDENT

WADE HEWITT
FOURTH RESPONDENT

JUDGE:	EMMETT J
DATE:	7 NOVEMBER 1997
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   The applicant is the liquidator of Absolutely Fabulous Exhibitions & Events (Management) Pty Limited (“the Company”). There is before the court a notice of motion seeking leave under Order 8 Rule 2 of the Federal Court Rules for the applicant to have a summons to attend an examination under section 596B(1) of the Corporations Law served outside the Commonwealth and in England. The intended respondent to the summons is a member of the Company or a member of a company which had some association with the Company.

Order 8 Rule 1(ag) provides that originating process may be served outside the Commonwealth where the proceeding affects the person to be served in respect of his or her membership of a corporation carrying on business in the Commonwealth or registered in a State or Territory as a foreign company. However, Order 8 Rule 2 provides that service outside the Commonwealth of originating process is not valid under Order 8 unless the service is in accordance with the prior leave of the court under Rule 2(2).  Under Rule 2(2), where the court is satisfied as to certain matters, the court may by order grant leave to serve the originating process outside the Commonwealth under Order 8.  The Court must be satisfied as to the following:

(a)       that the proceeding  is  a  proceeding in which the court has jurisdiction;
(b)       that the proceeding  is a  proceeding to which rule 1 applies; and
(c)       that the applicant has a prima facie case for the relief which he seeks,...

I should note that no application is made under Order 8 rule 3.

I have indicated to counsel for the applicant that I am not satisfied as presently advised that this is a case where an order can be made under Order 8 rule 2 because I do not consider that the summons is originating process within the meaning of Order 8. The summons is issued pursuant to section 596B of the Corporations Law which provides that the court may summon a person for examination if an eligible applicant, which includes a liquidator, applies for the summons and the court is satisfied as to certain matters set out in section 596B(1)(b). Thus, there is a two stage process. First an application is to the Court and then the Court issues a document summoning an individual to attend to be examined.

I was referred to the decision of Lockhart J in Re Sherlock (1991) 102 ALR 156 where his Honour held that an order under section 597, the predecessor of sections 596A and 596B, was not originating process within the meaning of Order 8. Counsel for the applicant submitted that there is a significant change in the legislation from section 597 to sections 596A and 596B. As presently advised, I am not disposed to accede to that submission. As I understand section 597, before its repeal, the essence of the procedure was the same. Under section 597(2) a prescribed person could apply to the court for an order under section 597. Under section 597(3) where an application was made, the Court could order the person to attend before the Court to be examined.

Thus, both provisions contemplate a two stage process whereby an application is made to the Court and the Court issues a document requiring attendance for examination.  I am not satisfied, at present, that the Parliament intended to change the scheme of the provisions.  Accordingly, I would be disposed to consider that the reasoning of Lockhart J applies to the new provisions. 

In any event, I am not persuaded, having regard to the language of Order 8, that a summons such as is contemplated could ever be originating process.  The Court must be satisfied that the applicant has a prima facie case for the relief which he seeks.  In the summons, the applicant seeks no relief.  The recipient of the summons is simply bound by the summons to attend and be examined.  The application for the issue of the summons may be originating process in that some relief is sought, being the issue of the summons.  Such applications, of course, are almost invariably made ex parte.  The summons itself, however, does not satisfy that requirement and accordingly it seems to me that the Court could never be satisfied as to that matter.

In addition, the proceeding must be proceedings to which Rule 1 applies.  The paragraph relied upon, as I have said, is paragraph 1(ag).  A summons to a person to attend to be examined does not affect the person in respect of his or her membership.  Insofar as there is a proceeding, it is a proceeding to acquire information.  It may be that having acquired that information the liquidator will use it in connection with a proceeding which would affect the person to be served in respect of his or her membership of a corporation.  However, the summons itself does not. 

For those reasons, I would have been disposed to reject the application.  However, counsel for the applicant has indicated that he has received instructions in the matter only in the very recent past and has not had the opportunity of researching the matter to the level which he would prefer.  I am mindful of the fact that in the winding up of companies it is essential that all assistance be given to a liquidator to ascertain any information beneficial to the due administration of the winding up.

In those circumstances, rather than dismiss the application, I propose to stand it over before the duty judge next week on the basis that I should not be treated as part heard.  I have really only heard the opening and have not embarked on the final determination of the matter by reading the affidavits and considering the evidence in support of the application.  However, dates have been fixed for the prospective examination and my absence from Sydney next week means that I will be unable to hear any further argument until the week after next by which time it may be too late, if the summonses are to be issued for them to be served in the United Kingdom.

For those reasons, I propose simply to stand the notice of motion over for hearing before the duty judge next Wednesday.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:            7 November 1997

Counsel for the Applicant:	J Dupree
Solicitor for the Applicant:	Duffield & Duffield
Counsel for the Respondent:
Solicitor for the Respondent:
Date of Hearing:	7 November 1997
Date of Judgment:	7 November 1997