In the matter of Dallhold Investments Pty Ltd (in liq) and Anor and Mercantile Credits Ltd and Anor v Dallhold Investments Pty Ltd (in liq) and Anor

[1992] FCA 1065

192 1 , 72

JUDGMEN'T J........ ........ .

IN THE FEDERAL COURT OF AUSTRALXA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NO. NG 3039 of 1991

1

GENERAL DIVISION	1
IN THE MATTER OF DALLHOLD INVESTMENTS PTY LIMITED f IN LIOUIDATION) (RECEIVERS AND MANAGERS APPOINTED)

BETWEEN :  MERCANTILE CREDITS LIMITED

Applicant

AND :	DALLHOLD INVESTMENT PTY LIMITED f IN LIOUIDATIONL
f RECEIVERS AND MANAGERS
APPOINTED)

Respondent

No. NG 3056 of 1991

IN THE MATTER OF GOLD RESOURCES AUSTRALIA LIMITED IIN LIOUIDATION\

BETWEEN :	DALLHOLD INVESTMENTS PTY LIMITED I IN LIOUIDATIONL
f RECEIVERS  & MANAGERS
APPOINTED

Applicant

AND :  GOLD RESOURCES AUSTRALIA
LIMITED (IN LIOUIDATION)

order made by the Court ex parte on the application of the	liquidator of Dallhold Investments Pty Limited ("Dallhold"), that
certain persons whose names appear in the schedule to the order' attend before the registrar for production of documents and examination concerning the affairs of Dallhold.
An alternative order is sought by the examinees this morning, namely, that the examinations of the examinees be
conducted in Melbourne rather than Sydney and that the production
of documents take place in Melbourne not Sydney. There has been

Respondent

9 MARCH 1992

REASONS FOR JUDGMENT

LOCKHART J.

There is before the Court this morning an amended notice of motion filed by prospective examinees in both matters in the list, that is matters 3039 and 3056 of 1991. The motion asks that an order of the Court of 14 February 1992 be discharged, an

..l

sensible discussion between bench and bar and between counsel over the short adjournment this morning with a view to resolving in a practical way the problems which were referred to in the amended notice of motion.

Those problems are as follows; first, it was said by counsel for the examinees that to comply with the order of production of documents would be a mammoth task confronting the National Austrakia Bank. The Bank's officers are the subject of the orders for examination together with a partner of the firm of

adduced to support the contention of the enormity of the task.	solicitors acting for the National Bank. There is evidence
That evidence has been challenged by counsel for the liquidator on the ground of generality and the fact that it is based on information and belief and there is no legitimate means of testing the accuracy of the statements made by the deponent who is the solicitor for the bank.
What counsel have discussed, together with the solicitors for the parties, is that there should be a modus operandi devised before the 19th of this month (which is the date for the production of documents) so that the bank or the examinees as the case may be will produce to the liquidator of Dallhold and of Gold Resources Australia Limited as they become available in a series of waves such documents as the bank is able to locate within the time nominated. It may be that in due course the documents they produce will prove to be all that the liquidator desires to see. On the other hand that may not prove to be so, in which case any subsequent dispute can take place, but then in the light of the better information that will be available to the liquidator resulting from the production of the documents to which I have just referred.
The intent is that the documents will be produced on 19 March which is the date fixed by the registrar for the production of such documents in Sydney. That order of the registrar shall stand requiring production before him at 10 o'clock, although the matter will be placed back in the list before me at 9.30 that day
outstanding between the parties with respect to the production simply to see what points of principle, if any, are still
of documents and generally in the case. The registrar will nevertheless take the matter at 10 o'clock in the light of what occurs at 9.30 before me.
I should say at this point that all examinees are required to appear before the registrar at 10 a.m. on the 19th. In fact the discussion between the parties has made it plain that the liquidator will only require an officer or officers of the bank to appear on that day following discussions that will take place between these solicitors for the parties. In other words it may be that the liquidator only requires a formal appearance on the 19th, in which case the registrar can be so informed and the matter dealt with on that basis.
If any problems arise they can always be referred back to A second point arises on the amended notice of motion and that is that the examinees say that many of the documents that they are required to produce are the subject of legal professional privilege or possibly the subject of a different form of privilege known as settlement privilege which has, of course, a different origin in the law of privilege. The discussions between the parties have sensibly, for the moment, at any rate, resolved that question because there will be
me.
documents in respect of which privilege as claimed, stating produced by the examinees on or before 19 March, a list of
certain matters which are the subject of the agreement between the parties, which I shall mention in a moment, and it may be that the privilege argument will in fact go away. On the other hand, it may be that it will not and will have to be dealt with by the Court and if that is so, of course, it will be dealt with.
A third point raised by the notice of motion concerns where the document should be produced and the discussion has resolved
that. The officers of the bank to be examined live and work in Melbourne and the documents or at least most of them are located in Melbourne; but the liquidator has made it clear that he will indicate (at least for the purposes of 26 and 27 March, which are the dates fixed before the registrar for the examination of witnesses) which witnesses he wants and on what day, and will attend to the payment of their costs and expenses of attendance subject, of course, to the orders of the Court in due course as to who should ultimately bear that burden. The liquidator is concerned to ensure that the convenience of witnesses is met and that the affairs of the bank and its officers are dislocated as little as possible - a commendable objective.
I think as these examinations may not conclude on 26 and 27 March, the course that should be followed in general terms is that the witnesses should be examined before the registrar on the two dates fixed; but that the Court should maintain its general supervisory role over the matters, so that any points of
principle may be brought back by the parties to the Court on short notice which normally would be in the order of not less
than 24 hours notice unless something of greater urgency arises, in which case it can be brought back earlier on arrangement with my associate.
The agreement between the parties is embodied in a two page document which involves also the orders of the Court.
The Court notes the agreement between the parties embodied in the short minutes and makes orders by consent in terms of paragraphs 3, 4 and 5. For the purposes of identification I shall initial and date it 9.3.92. The parties are at liberty to uplift the documents for the purposes of typing and return and
I would ask that they be returned with the typed version by 4 pm
today and that they do not leave the custody of counsel or solicitors for the parties.
The orders that have been made apply to both matters in the list before the Court today (3039 and 3056 of 1991).

I certify that this and the

preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate -2% g(w

Dated: 9 March 7992

Counsel for National Australia
Bank Ltd & Other Examinees	C.M. Scerri
Solicitors for National

.

Australia Bank Ltd & Other	Mallesons Stephen
Examinees	Jacques
Counsel for Mercantile Credits Limited and Gold Resources

.

Australia Limited (In	M.J. Finnane Q.C.
Liquidation)	R. J. Weber
Solicitors for Mercantile Credits Limited and Gold
Resources Australia Limited :	Kemp Strang Chippendall
(In Liquidation)

Date of Hearing	.	9 March 1992
Date of Judgment	9 March 1992