In the Matter of Triflex Electrical Pty Ltd (In Liq)
[2012] NSWSC 1206
•09 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: In the Matter of Triflex Electrical Pty Ltd (In Liq) [2012] NSWSC 1206 Hearing dates: 9 August 2012 Decision date: 09 August 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Order for Production set aside with costs
Catchwords: PRACTICE & PROCEDURE - orders for production - UCPR r 1.9 - appropriate procedure where objection is taken on the basis that the order for production will require production of privileged material - whether order for production ought to be made that captures material that may be subject to a claim for privilege - decision in Meteyard considered
PRACTICE & PROCEDURE - orders for production - objection on grounds of oppression - whether terms of order are confusing - whether terms of order are too expansiveLegislation Cited: (Cth) Corporations Act 2001, s 596A, s 596B
(NSW) Civil Procedure Act 2005, s 68
(NSW) Supreme Court Rules 1970, Part 36 r 13, Part 36 r 16Cases Cited: Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36
Re BPTC Ltd (In Liq) (No 5) (1993) 10 ACSR 756; 11 ACLC 734
Hypec Electronics Pty Ltd (In Liq) [2006] NSWSC 704
Nielsen & Moller Autoglass (NSW) Pty Ltd (In Liq) [2008] NSWSC 1197
Re Southland Coal Pty Ltd (recs and mngrs appt) (in liq) [2006] NSWSC 184; (2006) 58 ACSR 113Category: Interlocutory applications Parties: Reid Chapman Berg (First Applicant)
Ross Edward Jorgensen (Second Applicant)
Kristen Macallister Jorgensen (Third Applicant)
Rockwell Automation Australia Limited (Respondent)Representation: Counsel:
S Golledge (Applicants)
B F Katekar (Respondent)
Solicitors:
ERA Legal (Applicants)
Mills Oakley (Respondent)
File Number(s): 12/155237
Judgment (ex tempore)
HIS HONOUR: Triflex Electrical Pty Ltd went into liquidation on 29 October 2010. On 15 June 2012, on the application of the respondent Rockwell Automation Australia Ltd, a creditor of the Company, the Court issued a summons for examination returnable on 13 August 2012 to each of the first applicant Reid Chapman Berg, a director of the company (under (Cth) Corporations Act 2001, s 596A), and to the second and third applicants Ross Edward Jorgenson and Kristen Macallister Jorgenson, each former directors of the company (under Corporations Act, s 596B). Each of the applicants is also a shareholder in the company. The only subject matter of the examination identified in the examination order is the "examinable affairs" of the company. Concurrently with the examination order, the Court issued, pursuant to (NSW) Civil Procedure Act 2005, s 68, orders for production addressed to each of the applicants. By the interlocutory process presently before the Court, the applicants seek to have the orders for production set aside, in whole or in part, on the ground that they are oppressive. The applicants do not impugn the examination orders.
For the purposes of considering the application, it suffices to refer to the order for production addressed to the first applicant, Reid Chapman Berg, which is set out in the appendix to this judgment.
Background
From 1990, until 30 June 2009, Triflex Electrical Pty Ltd ("Triflex") was a distributor of Rockwell products.
In 2007, Triflex paid Triflex Manufacturing Pty Ltd a sum of $299,000. The third applicant, Ms Jorgenson, is a director and owner of one of the two shares in Triflex Manufacturing; Mr Berg is a director of Triflex Manufacturing, and Berg Family Pty Ltd owns the second share in Triflex Manufacturing. The payment of $299,000 was a management fee, in anticipation of the consolidation of Triflex and Triflex Manufacturing, which never occurred. However, it is alleged that the fee was not repaid.
On 5 November 2008, Rockwell gave Triflex notice that its distributorship would cease, about seven months later, on 30 June 2009. Triflex Automation Pty Ltd was incorporated on 19 November 2008, with Mr Berg as its sole director and secretary and the Jorgensons as its shareholders. It has since then conducted business from the same premises as Triflex.
In February 2009, Triflex commenced proceedings in the Supreme Court of Victoria against Rockwell, claiming compensation for the value of the distributorship it was about to lose. At some stage in 2009, Triflex assigned its interest in its lease of its business premises, to the Jorgenson Super Fund. By 30 June 2009, when the distributorship ended, Triflex was indebted to Rockwell for nearly $2 million in respect of Rockwell products that it had ordered, and of which it had taken delivery, but not paid for. Rockwell cross-claimed in the Victorian Supreme Court proceedings for that debt.
In September 2009, Triflex paid dividends of $300,000 to Mr Berg and the Jorgensons. On 19 November 2009, Mr Berg purchased a property in Narrabeen for $520,000. On 20 May 2010, Triflex paid $800,000 in dividends to Mr Berg and the Jorgensons. Following a trial in June 2010 in the Supreme Court of Victoria, Judd J, on 9 September 2010, dismissed Triflex's claim against Rockwell, and on Rockwell's cross-claims gave judgment against Triflex for about $2.5 million. On 10 September 2010, Triflex paid Triflex Automation the sum of $400,000.
Following service of a creditor's statutory demand on 13 October 2010, and before the demand expired, Mr Berg and the Jorgensons as shareholders in Triflex resolved to appoint a liquidator on 29 October 2010. The liquidator's report of 10 December 2010 identified a number of lines of enquiry, included related party payments, unfair preferences, insolvent trading, drawings by related parties of Triflex, and alleged breaches of the Corporations Act by Mr Berg.
The above summary is substantially taken from the respondent's submissions, and should not be treated as concluded findings of fact, but a summary of the background and of what Rockwell alleges, as forming relevant background to the scope of the proposed examinations and therefore the ancillary orders for production.
Objections to the orders for production
Objection was taken to the orders for production broadly on three grounds: first, what might be called privilege; secondly, the general breadth of the orders, and, thirdly, specific objections to specific paragraphs.
The privilege objection
So far as the privilege objection is concerned, the Applicants say that the orders compel production of privileged documents, and submit that orders that have that effect should not be made, at least ex parte. For this proposition, the principal authority relied upon was the judgment of the Court of Appeal in Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36. Beazley and Santow JJA relevantly agreed with Basten J, who dealt with the relevant issues (at [130] - [133]), as follows:
[130] The consequences of that conclusion must be assessed by reference to the statutory scheme under which orders for production were made. Part 36, r 13 [of (NSW) Supreme Court Rules 1970] applies both to orders for production and production on notice under Pt 36, r 16. The latter rule provides that a party served with a notice "shall, unless the court otherwise orders, produce the document or thing in accordance with the notice": r 16(1). The effect of r 13(2) is, it would appear, that no order relieving the party under r 16 is necessary: rather, where privilege is invoked, the rule "shall not require" production of the document, until the Court has directed that production "shall not be prevented" by subr 13(2). Whether a similar approach is to be adopted in relation to an order for production under r 12 is less clear. Subrule 13(3) does not say that in such a case the order "shall not require" production of a privileged document, but rather that the Court "shall not compel" such production, unless and until it directs that the production shall not be prevented. On one construction, the order is unenforceable, pending further consideration by the Court; on the other construction, an order should not be made in the first place seeking to compel production of documents the subject of privilege.
[131] In Re BPTC Ltd (In Liq) (No 5) (1993) [10 ACSR 756; 11 ACLC 734] (at 759; 736), Bryson J adverted to the nature of these difficulties, in practical terms. His Honour was concerned in particular in that case with a complaint as to the excessive scope of the orders for production, made under Pt 36, r 12. After referring to the need for affidavit evidence showing the ground on which the order should be made, his Honour continued (at 759; 736):
"... and further there will be instances where it is not appropriate to act ex parte but the registrar or other judicial officer should require notice of motion to be given to the party to be affected. More formal procedure would be appropriate where the call for documents is very extensive and compliance might be difficult. There would also be instances where it can be foreseen that there is likely to be some claim for public interest privilege or legal professional privilege, or other dispute."
These comments are appropriate in the present case.
[132] Once it is understood that the operation of Pt 36, r 13, in relation to an order for production under r 12, precludes the Court from compelling production, even to itself, of a document subject to client legal privilege, an order having that effect should not have been made. Of course, it is not possible for this Court to say that particular documents are the subject of privilege: that issue has yet to be litigated. The mechanism for addressing these issues is by no means clear. In the present case the procedural issues have been blurred by the fact that each summons and order for production was made by the Deputy Registrar in the one proceeding and each was challenged by way of "interlocutory process" prescribed with respect to an examination summons only. Given the importance of the issues raised by client legal privilege, and the absence of a clear procedure by which to raise the issues, in my view the preferable conclusion is that an order for production under Pt 36, r 12 should not be made ex parte where it may be anticipated that such questions will arise or, in the alternative, the order should make express exception for documents subject to privilege. The fact that a claim for privilege was likely to be raised in the present circumstances was known to the opponents when they sought the orders and should, in accordance with the obligations of a party seeking ex parte relief, have been disclosed to the Deputy Registrar. Whether or not those possibilities were disclosed is not known.
[133] In my view, the orders for production should be set aside on the basis that it has been established that they are likely to extend to documents which cannot properly be the subject of an order for production, which documents are likely to form a significant proportion of those subject to the order. It was not suggested by the opponents that the categories of documents subject to privilege could readily be severed, or that the orders could be saved in part if the conclusion of the Court favoured the submissions of the claimants. Accordingly the orders for production should be set aside.
It will be seen that, in dealing with the then provisions of Part 36 Rule 13 and Rule 16 of the (NSW) Supreme Court Rules 1970, his Honour expressed the view that on one construction the order was unenforceable pending further consideration by the Court, and on the other an order should not be made in the first place seeking to compel production of documents the subject of privilege. It seems that, faced with the rules as they then were, to which I shall come, his Honour may have favoured the second construction; so much is suggested by the first sentence of paragraph 132 of his Honour's judgment. It is, however, to be noted that in paragraph 133, his Honour seems to have considered it relevant that this was a case in which documents that were likely to be the subject of a claim for privilege were likely to form "a significant proportion" of those the subject of the order. All this material suggests that what his Honour was addressing in paragraphs 132 and 133 were not questions of power or of law, but as to how a discretion ought generally appropriately be exercised.
It is in that light relevant to note the terms of the relevant rules when so considered by his Honour. They are set out in paragraph 76 of his Honour's judgment:
36.13 Privilege
13(1) This rule applies where:
(a) the Court, by subpoena or otherwise, orders any person to produce any document to;
(b) a party is required by a notice served under rule 16(1) to produce any document to; or
(c) a question is put to a person in the course of examination before,
the Court or a judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence and neither Part 3.10 of the Evidence Act nor Part 3.10 of the Evidence Act 1995 of the Commonwealth is applicable.
(2) The Court shall not compel, and rule 16 shall not require, production of a document or an answer to a question, unless and until the Court directs that the production or answer shall not be prevented by this sub-rule:
(a) over the objection of a person if evidence of the document, or of an answer to the question, could not be adduced in the proceedings over the objection of the person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act;
... .
That rule has been replaced by the combination of CPA, s 68, and UCPR, r 1.9. Section 68 is expressed to be subject to the Rules of Court. UCPR, r 1.9, is as follows:
1.9 Objections to production of documents and answering of questions founded on privilege
(1) This rule applies in the following circumstances:
(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,
(b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,
(c) if a question is put to a person in the course of an examination before the court or an authorised officer.
(2) [...]
(3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.
(4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.
(5) For the purpose of ruling on the objection:
(a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and
(b) cross-examination may be permitted on any affidavit used, and
(c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document.
(6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest.
In the passage of Basten J's judgment, which I have set out above, his Honour said in paragraph 132 "the mechanism for addressing these issues is by no means clear". It will be seen that r 1.9 differs from former r 36.13, at least in the relevant respect that subrule (3) has been inserted before subrule (4), and the insertion in subrule (4) of the words "objecting under subrule (3)" to my mind greatly clarifies the procedure to be followed in this respect, in a way which may not have been so clear at the time of Meteyard. It reinforces the view that there is a difference between the idea of being "compelled" to produce the document referred to in subrule (4), and being "ordered" to produce a document under subrule (1)(a).
It seems to me on the face of r 1.9, that the procedure is quite clear: the Court may order a person to produce a document, as contemplated by subrule (1); a person who wishes to claim privilege may object to producing the document under subrule (3); once that objection is taken, subrule (4) makes clear there is no compulsion to produce the document, unless and until the objection is overruled.
That this is the correct approach is reinforced, first, by the fact that this is the way in which Courts have for centuries dealt with subpoenas for production - namely, that following the issue of a subpoena for production it has not been regarded as a proper objection to a subpoena for production that some of the documents for which it calls may be privileged, and that the proper course is to claim privilege upon production of the documents to court and have the Court rule on the claim - and, secondly, by the practical consideration that if it were necessary to "carve out" from subpoenas for production, orders for production and the like, documents that may be the subject of a claim for privilege, there would be difficulty and delay in having those documents brought to Court, and it would tend to delegate to the recipient of the subpoena or order for production the primary right to decide whether to produce the documents at all, by deciding to assert a claim of privilege.
In my view, the structure of r 1.9 makes clear that an objection under subrule (3) assumes that an order has been made that catches documents that may be subject of a claim for privilege. In other words, it assumes that such orders may be made without excluding from their scope documents potentially the subject of a claim for privilege.
These issues have been addressed in a number of cases that have followed Meteyard. In Hypec Electronics Pty Ltd (In Liq) [2006] NSWSC 704, Barrett J, as his Honour then was, after reference to Meteyard, said (at [5]):
It is thus made clear that the Court should not in cases of apprehended claims for protection by way of legal professional privilege, simply make an order for production ex parte on the application of the liquidator. Rather, it must put in place some mechanism whereby privilege claims may be brought forward and examined before any compulsion is exerted by means of an order of the Court.
In my view, that mechanism is now clearly provided by r 1.9.
As Mr Golledge for the Applicants conceded, at least if this were a question of power rather than one of discretion, it could not as a matter of law make any difference whether the order is made ex parte or on notice.
In Re Southland Coal Pty Ltd (recs and mngrs appt) (in liq) [2006] NSWSC 184; (2006) 58 ACSR 113, Austin J took a view closer to that to which I adhere (at [80]):
[80] An order framed so as to exclude documents that the producing party would be entitled to withhold as privileged was made in Re Equiticorp Finance Ltd; Ex parte Brock (1992) 6 ACSR 725 and Basten JA contemplated the possibility of such an order in Meteyard: at [133]. But the Court of Appeal's reasoning does not mean that in every case, the order for production must contain such an express exclusion. The Uniform Civil Procedure Rules set out a procedure by which claims for privilege are to be made. As I have explained, the person to whom the order is directed may object to producing the document and once the objection is made, cannot be compelled to do so unless and until the objection is overruled. That is the position as a matter of law. If orders were made expressly excluding documents subject to client legal privilege, there would be a risk that the persons to whom the orders were directed would regard themselves as exonerated from taking any co-operative steps with respect to documents that they regarded as privileged, such [as] preparing lists or even embarking on any process of review. At least in some cases, it may be preferable simply to add a note to the orders drawing the reader's attention to the relevant rules. But in my view it is unnecessary to take any such step in a fully contested inter partes matter where the parties are legally represented, and I do not regard the Court of Appeal as suggesting otherwise. In such a case an acceptable course, in accordance with the rules, is to make unqualified orders for production coupled with liberty to apply, which may be exercised for the purpose of giving directions designed to bring forward contested privilege claims for resolution, once specific documents have been identified and particular claims for privilege have been made in respect of those identified documents.
In Nielsen & Moller Autoglass (NSW) Pty Ltd (In Liq) [2008] NSWSC 1197, Hammerschlag J was faced with the argument that r 1.9 made a difference. His Honour held that in that case it did not, but in doing so referred to a "prefatory note" that had been included in the relevant order which stated: "Note: if privilege is claimed, the records are to be separately listed and described with the relevant point of privilege claimed noted and produced in a separate sealed envelope marked 'privileged documents'." His Honour said (at [83] - [84]):
[83] The Orders made here compel production of privileged material irrespective of whether there is an objection based on privilege and continue to do so even if there is an objection.
[84] The prefatory note to the Orders has the specific object of facilitating production even though privilege is claimed, directly contrary to UCPR Pt 1 r 1.9(4).
[85] The reasoning of Basten JA that orders for production such as the present Orders should not be made ex parte where it may be anticipated that questions of privilege will arise or there should be exception for documents subject to privilege applies with no less force to the present case than it did in the circumstances considered by his Honour.
[86] Accordingly the Orders should not have been made.
To my mind, what his Honour was saying was that, because the prefatory note made clear that production was required even though privilege was claimed, it was inconsistent with r 1.9(4). The current order does not have that vice; it contains no such prefatory note, nor anything like it. It leaves r 1.9 to operate unaffected by any contrary provision in the order.
For those reasons, it seems to me that in the light of r 1.9(4), the inclusion in orders for production, and for that matter in subpoenas for production, of complex carve-outs and procedures for the resolution of disputes as to privilege is unnecessary; those procedures are covered by r 1.9.
I therefore do not accept, as a matter of principle, the privilege objection.
Even if one were to apply the law as it were before the introduction of r 1.9, I would not be persuaded that this was a case in which the same result as prevailed in Meteyard should obtain. That is because it is not shown that the order is likely to catch documents which will be the subject of a claim for privilege, or at least that such documents will constitute a "substantial proportion" of those caught by the order. The only class of documents that might include documents the subject of a privilege claim are those in paragraph 10 of the order. While those documents might conceivably be privileged in the hands of Triflex, there is no reason to suppose that the liquidator will in fact advance a claim for privilege in respect of them. In the hands of the applicants, the documents are said to be the subject of a common interest privilege, but in the absence of a claim by the liquidator, it does not seem to me that the applicants would have any basis to sustain a claim.
Accordingly, I reject the first ground of objection and turn to the second, which is what is said to be the generally oppressive nature of the order for production.
The oppression objection
It must be observed at the outset that the whole of the 26 specified paragraphs of the schedule of documents in the order is prefaced by the chapeau "all original documents (and, if originals are not available then copies of those documents) in your possession, custody or control recording, relating to or evidencing: ...", and there then follow the 26 specified categories. About that chapeau it is to be noted that the term "documents" is itself defined as follows:
Document has the meaning given to that expression in Part 1 of the Dictionary to the Evidence Act 1995 (Cth). A reference in this schedule to a Document includes a reference to:
(a) any part of the Document;
(b) any copy, reproduction or duplication of the Document or of any part of the Document; or
(c) any part of such a copy, reproduction or duplicate.
For the avoidance of doubt 'Documents' includes emails and computer generated communications.
Significantly, that means that "document" includes any copy, reproduction or duplication of a document or part of the document. It also includes emails and computer generated communications and it follows any copy, reproduction or duplication thereof. Given the matter that appears in parentheses in the chapeau, it is to say at least confusing whether, in the light of the definition, copies, reproductions or duplications are or are not required if originals are also available.
The second observation to be made is that the relationship between the documents described in the chapeau, which identifies the documents required to be produced in relation to the 26 classes that follow, is not that they be the documents described in those classes, but that they record, relate to or evidence the documents described in those classes. In other words, to take class 4 as an example, production is required not of the taxation returns of Triflex, but of original (and probably copy) documents "recording, relating to or evidencing" Triflex's taxation returns. This is at least not necessarily the same thing, and my prima facie view is that it is a different thing. A document that evidences something is not necessarily a document that is that thing.
This problem is aggravated by further connective terminology, in for example paragraph 5, so that what is required is production of documents relating to documents in relation to the transfer of Triflex's employees to Triflex Automation; or, in paragraph 6, documents relating to documents relating to calculations of the purchase price paid for Triflex's assets; or, in paragraph 10, documents relating to documents relating to the issues the subject of the proceeding, including documents provided by Triflex to its solicitors; or, in paragraph 11, documents relating to documents relating to "your acquisition of real property located in Narrabeen". There are many other examples. The concept of a document relating to a document relating to a subject matter is, to say the least, a difficult and a very expansive one.
To my mind, the foregoing difficulties are such, and so permeate the orders, as to render them oppressive.
It was also objected that the orders were generally oppressive on the basis of their "cascading effect", in that many paragraphs caught documents that necessarily fell within other paragraphs; for example, that paragraphs 2, 3 and 4 caught documents which were necessarily already within paragraph 1. As I have concluded that the orders must be set aside in any event, I need not finally resolve this issue. As was pointed out on behalf of Rockwell, there would not have been a problem in this respect if it had been expressed "all books of Triflex including" and then referring to the matters in 2, 3 and 4; for example, that is the way in which it was done in paragraph 10. However, that is not the way in which it was done in paragraphs 1, 2, 3 and 4. It may be that the vice would not have been enough to produce a conclusion that the order was generally oppressive if it had been the only problem, but the ordinary construction of a document which specifies four apparently separate classes of documents is that those classes are different, not that three of them are subsets of the first class. Good practice in drafting orders of this type, and subpoenas, is to assume that the reader would construe it as if the separate paragraphs were separate classes, not subclasses of an earlier class, and that if it were intended that they be subclasses, that it be drafted in the inclusive manner to which I have referred and in which, for example, paragraph 10 was drafted. It ought not require Senior Counsel's advice to interpret an order for production.
The conclusion I have reached in respect of general oppression relieves me of the need to consider in detail the specific objections. However, in order to endeavour to avoid difficulties with the inevitable re-drafting of these orders, I will make some observations in that respect as to the objections that have been indicated.
Objections to specific paragraphs
So far as paragraph 5, subparagraph (a), is concerned, it seems to me that in the light of the history to which I have referred, the establishment of Triflex Automation is within the examinable affairs of the company, because it is relevant to the potential related party claims. So far as paragraph 5, subparagraphs (ii) and (viii), are concerned, they are relevant to the examinable affairs of the company because they are subsets described by 5(a), (b), (c), (d), (e) and (f), not separate heads of documents standing on their own. Subparagraphs (a) to (f) provide the necessary link to the examinable affairs of Triflex.
So far as paragraph 7 is concerned, I was initially troubled that it was unlimited by reference to the subject matter of the communications. However, I accept that any such documents within the possession, custody or power of the applicants are in their possession, custody or power by virtue of Triflex's membership of 'ABDAA', and therefore must relate to the examinable affairs of Triflex.
So far as paragraph 8(a) is concerned, it seems to me confusing, in that it is unclear whether the date or period referred to of 1 November 2008 to 30 June 2009 is a reference to the date of the document or communication in question, or to the sale or other transaction in question, or to the original supply in question. So far as subparagraph (b) is concerned, while it may well be that as a matter of construction, this could have been overcome and would not have been fatal, there is no connection between the prefatory words "all documents or written communications" and the subparagraph. In other words, it is not clear whether they are documents or written communications, being invoices or relating to invoices, or what the requisite connection is.
So far as paragraphs 9(b) and (c) are concerned, and others of the same kind, in circumstances where it is alleged that Triflex's business has been transferred to Triflex Automation or Triflex Manufacturing, documents evidencing the business activity of Triflex Automation and Triflex Manufacturing would fall within the examinable affairs of Triflex. In respect of those, and other, paragraphs, one of the objections foreshadowed is that the documents are confidential. Confidentiality is not of itself an objection to an order for production, any more than it is to a subpoena; although it might justify the imposition of a confidentiality regime upon production of the documents.
So far as paragraph 10 is concerned, the fact that it may capture some privileged documents is not an objection to the order, for the reasons that I have already set out. On the other hand, I would be inclined to accept that an order, or a paragraph of it, that could capture only privileged documents, which could never be used, would be liable to objection. But this is not such a paragraph, and it necessarily captures many documents which would be outside the scope of any claim for privilege. Any claim for privilege can be addressed under rule 1.9, as I have described.
Paragraphs 13(d) and (e) relate to examinable affairs of Triflex, for reasons similar to those I have given in respect of 9(b) and (c). Again, any confidentiality issue can be addressed by a confidentiality regime and is not of itself an objection. Paragraph 14 falls within the same territory, as do paragraphs 15, 16, 17 and 18.
Paragraphs 19 and 20 include communications with the liquidator before the date of liquidation, and therefore may capture material which bears on the solvency of the company and the knowledge of its directors in the pre-liquidation period. Those are within Triflex's examinable affairs. An objection was indicated that these could catch without prejudice communications, but the circumstance that communications are without prejudice is no objection to their production, although it may preclude their use in evidence.
I think that sufficiently indicates my provisional views, at least about the specific paragraphs, to reduce any issues that arise on what I have said will be the inevitable re-drafting of the orders.
Orders
I therefore make the following orders:
(1) Order that the orders for production issued to the First, Second and Third Applicants be set aside in their entirety.
(2) Order that the respondent pay the applicants' costs of the Interlocutory Process assessed in the sum of $20,000.
(3) Vacate the examinations appointed to commence on 13 August 2012.
(4) Order that the documents so far produced under the orders for production be returned to the parties who produced them.
(5) Grant liberty to the respondent to approach a registrar to obtain a further date for the examinations and further orders for production.
**********
Appendix - Order for Production to Reid Chapman Berg sought by the Plaintiff
The documents or things you must produce are as follows:
DEFINITIONS
The following expressions have the given definitions when used in this Schedule:
Account includes a bank account, savings account, cheque account, loan account, credit card account, term deposit, cash management fund, on call deposit, insurance bond and investment insurance policy.
Advisor includes any employee of the firm Mitchell & Partners, any other accountant, insolvency specialist, business services advisor, financial planner, solicitor or barrister.
Asset means any kind of property or right and includes:
(a) any legal or equitable state or interest (whether present or future, vested or contingent, tangible or intangible, in real or personal property (including customer lists)) of any kind;
(b) any chose in action; and
(c) any right, interest or claim of any kind, including any right, interest, claim, power or privilege over or in relation to real estate (whether arising under an instrument or otherwise, and whether liquidated, certain or contingent, accrued or accruing).
Books has the meaning given to that expression in section 9 of the Corporations Act 2001 (Cth), being:
(a) a register under the Corporations Act 2001;
(b) any other record of information; or
(c) Financial Reports or Financial Records, however compiled, recorded or stored; and
(d) a Document.
Document has the meaning given to that expression in Part 1 of the Dictionary to the Evidence Act 1995 (Cth). A reference in this schedule to a Document includes a reference to:
(a) any part of the Document;
(b) any copy, reproduction or duplication of the Document or of any part of the Document; or
(c) any part of such a copy, reproduction or duplicate.
For the avoidance of doubt 'Documents' includes emails and computer generated communications.
Financial Institution means any financial institution whatsoever (whether in Australia or otherwise) and includes a bank, building society, credit union, stockbroker or other entity engaged in the business of trading in Securities, superannuation body and insurance company. For the avoidance of doubt Financial Institution includes overseas banks.
Financial Records has the meaning given to that expression in section 9 of the Corporations Act 2001 (Cth), being:
(a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and
(b) documents of prime entry; and
(c) working papers and other documents needed to explain:
(i) the methods by which financial statements are made up; and
(ii) adjustments to be made in preparing financial statements.
Financial Report has the meaning given to that expression in section 9 of the Corporations Act 2001 (Cth), being an annual financial report or a half-year financial report prepared under Chapter 2M of the Corporations Act 2001 (Cth).
Financial Statements includes:
(a) draft and final taxation returns, balance sheets, profit and loss statements, business activity statements, Financial Reports; and
(b) Documents which fall within the meaning given to that expression in section 9 of the Corporations Act 2001 (Cth), being annual financial statements under section 295 of the Corporations Act 2001 (Cth) or half-year financial statements under section 303 of Corporations Act 2001 (Cth).
Jorgensen Entity means any related entity of yours, and for avoidance of doubt includes:
(a) any entity in which you hold an Interest, whether directly or indirectly;
(b) any entity in which you exercise, or have exercised, some form of control over its management and affairs;
Interest means any legal, beneficial or equitable interest or estate of any kind whatsoever.
Liquidator means Sule Arnautovic of Jirsch Sutherland, in his capacity as Liquidator of Triflex.
Officer has the meaning given by section 9 of the Corporations Act 2001 (Cth).
Premises means Unit 4, 18 - 20 Tucks Road, Seven Hills, New South Wales, 2147.
Proceedings means the proceedings commenced by Triflex against Rockwell Automation Australia Ltd in the Supreme Court of Victoria, being Proceeding Number 5579 of 2009.
Securities means:
(a) any debentures, stocks or bonds issued or proposed to be issued by a government, body corporate or unincorporated body;
(b) any shares in, or debentures of, a body corporate or unincorporated body;
(c) units of shares in a body corporate or unincorporated body;
(d) any interests in a managed investments scheme;
(e) any legal or equitable rights or interests in shares, debentures or interests in a managed investment scheme;
(f) market traded options;
(g) options to acquire (whether by way of issue of transfer) a security covered by paragraph (a), (b), (c), (d), (e) or (f).
Triflex means Triflex Electrical Pty Ltd (In Liquidation) (ACN 002 549 054).
TAPL means Triflex Automation Pty Ltd (ACN 134 248 123).
TMPL means Triflex Manufacturing Pty Ltd (ACN 109 821 687).
Written Communications means anything imparting any information in writing in both physical and/or electronic means, and includes but is not limited to letters, emails and notes.
Where an expression is defined another part of speech or grammatical form of that expression has a corresponding meaning.
DOCUMENTS
All original Documents (and, if originals are not available then copies of those Documents) in your possession, custody or control recording, relating to or evidencing:
1. All Books of Triflex.
2. The Financial Statements for Triflex for the period 1 January 2007 to 31 December 2010 including balance sheets and profit and loss statements.
3. The bank statements for any bank accounts held by Triflex for the period 1 January 2007 to 31 December 2010.
4. The Taxation Returns of Triflex for the financial years ending 30 June 2006, 30 June 2007, 30 June 2008, 30 June 2009 and 30 June 2010.
Acquisition of Triflex business by TAPL
5. All Documents and Written Communications in relation to;
(a) the establishment of TAPL;
(b) the sale of Triflex's business to TAPL;
(c) the transfer of Triflex's employees to TAPL;
(d) the sharing of Premises by Triflex and TAPL
(e) the use of the Triflex's assets by TAPL;
(f) the options available to Triflex following receipt of the notice of termination from Rockwell in November 2008;
including but not limited to:
(i)internal Written Communications between employees and/or Officers of Triflex;
(ii) internal Written Communications between employees and/or Officers of TAPL;
(iii) Written Communications between Triflex, its employees and/or Officers and its advisers including but not limited to Mitchell & Partners;
(iv) any Documents or Written Communications recording the arrangement or terms on which Triflex's business was sold to TAPL;
(v) any Documents or Written Communications recording the arrangement or terms on which Triflex's employees were transferred to TAPL;
(vi) any Documents or Written Communications recording the arrangement or terms on which TAPL was permitted to share premises with Triflex and/or use Triflex's Assets;
(vii) any Documents or Written Communications which record to note the value of Triflex's Assets;
(viii) any Documents Written Communications between you and/or TAPL and Siemens;
between the period 1 January 2008 and 31 December 2010.
6. All Books, Documents and Written Communications evidencing, noting, recording or relating to:
(a) any negotiations regarding the sale of Triflex's Assets or business;
(b) any offers received by Triflex from parties interested in acquiring its assets or business;
(c) calculations of the purchase price paid for Triflex's Assets or business;
(d) stock sold by Triflex to TAPL;
(e) any payments made by Triflex on account of wages, superannuation contributions, bonuses, holiday pay and loadings, long service sick leave and other amounts then due to employees and subcontractors since 1 November 2008;
(f) the payment of any monies by Triflex to TAPL, or on behalf of TAPL, since 1 November 2008.
(g) the payment of any monies by TAPL to Triflex, or on behalf of Triflex, since 1 November 2008.
(h) the payments of any monies by Triflex to:
(i) the lessor of the Premises;
(ii) suppliers of stock to TAPL;
(iii) WorkCover Authority of NSW; and
(iv) NSW Roads Maritime Services (formerly NSW Roads and Traffic Authority);
since 1 November 2008.
7. All Documents or Written Communications:
(a) between persons who are or were formerly members of the group known as the Allen Bradley Distributors Association of Australia (ABDAA);
(b) recording or evidencing meetings of persons who are or formerly were members of the ABDAA;
between the period 1 January 2008 and 31 December 2010.
8. All Documents or Written Communications:
(a) recording the sale, transfer or assignment of stock originally supplied to Triflex by Rockwell Automation Australia Ltd, in the period 1 November 2008 to 30 June 2009 inclusive;
(b) all invoices raised by TAPL to any party in the period 1 November 2008 to 31 December 2010.
9. All business activity statements lodged by:
(a) Triflex;
(b) TAPL; and
(c) TMPL
for the period 1 January 2008 to 31 December 2010.
10. All Documents and Written Communications relating to the issues the subject of the Proceeding, including but not limited to:
(a) all Documents, Books, Financial Records and Financial Statements provided by Triflex to its solicitors;
(b) all written communications evidencing advice provided to Triflex by its solicitors regarding the issues the subject of the Proceeding;
(c) all invoices and accounts rendered to Triflex by its solicitors for work done in relation to the Proceeding;
(d) all emails passing between Triflex, its employees and Officers and its solicitors in relation to the issues the subject of the Proceeding.
Property Transactions
11. All Documents, Books, Agreements, Financial Records and Financial Statements recording, evidencing or relating to:
(a) your acquisition of real property located in Narrabeen, New South Wales (Lot 2 in Folio 2/539523) (Narrabeen Property) by you on or around 19 November 2009;
(b) the source(s) of funds used to pay for the purchase price (including the deposit) for Narrabeen Property;
(c) the finance you obtained from the Commonwealth Bank of Australia (CBA) to assist with funding the purchase of the Narrabeen Property;
(d) the source(s) of funds used to pay the mortgage payments for the loan you obtained from the CBA;
including but not limited to the contract of sale, the letter of offer of finance from the CBA, the loan agreement with the CBA and the mortgage to the CBA registered on the title to the Narrabeen Property.
12. All Documents, Written Communications, Books, Financial Records and Financial Statements evidencing, recording or relating to:
(a) the sale of the leasehold interest the Premises by Triflex to the Jorgensen Super Fund in 2009;
(b) the consideration paid by the Jorgensen Super Fund for leasehold interest in the Premises and the source(s) of funds used to do so;
(c) any valuation of the leasehold interest in the Premises conducted prior or subsequent to the acquisition by the Jorgensen Super Fund; and
(d) any leases or sub leases for the Premises to which Triflex, TAPL, TMPL or the Jorgensen Super Fund is a party.
Payments and Dividends
13. All Documents, Books, Written Communications, Financial Records and Financial Statements which evidence or record payments from:
(a) Triflex to TMPL, including but not limited to the payment of $299,000 in 2007;
(b) Triflex to TAPL, including but not limited to the payment of $400,000 on or around 8 September 2010;
(c) Triflex to you, Ross Edward Jorgensen and/or Kristin Macallister Jorgensen including but not limited to the dividend payments on or around 20 May 2010;
(d) TAPL to you; and
(e) TMPL to you;
between the period 1 January 2007 and 31 December 2010.
14. All bank statements for bank accounts held in your name (either solely or jointly), for the period 1 January 2008 to present including but not limited to the bank statements for any loan accounts you have with the CBA.
15. Any Interest which you or a Jorgensen Entity has in any real or personal property (including motor vehicles), Securities or Assets or land (wherever located in the world) which has a market value of AUD$10,000 or more, including but not limited to the existence, identity, nature, terms or value of any estate or interest you have in any:
(a) real estate;
(b) Securities;
(c) Amounts held in any Account with a Financial Institution;
(d) Assets held on Trust; and
(e) Any other property held whatsoever by you.
16. Any mortgage, charge or other encumbrance over any Asset or Securities in which you or a Jorgensen entity have an Interest.
17. All Financial Statements (audited and unaudited), including profit and loss statements and balance sheets and taxation returns for:
(a) TAPL;
(b) TMPL;
(c) the Jorgensen Super Fund
between the period 1 January 2007 to present.
18. All bank statements for bank accounts held by:
(a) TAPL;
(b) TMPL;
(c) the Jorgensen Super Fund
between the period 1 January 2007 to present.
19. Any Written Communications recording or evidencing that which was discussed at any meetings between you and the Liquidator and/or any member of the Liquidator's staff during the period 1 January 2010 to present.
20. Any Documents or Written Communications, including Written Communications between you and the Liquidator which evidence, record or relate to TMPL's purchase of any assets formerly owned by Triflex.
Other documents
21. All minutes of meetings of the Directors or shareholders of Triflex for the period 1 January 2007 to 29 October 2010;
22. All minutes of meetings of the Directors or shareholders of TAPL for the period 1 January 2007 to 29 October 2010;
23. All minutes of meetings of the Directors or shareholders of TMPL for the period 1 January 2007 to 29 October 2010;
24. All minutes of meetings of the Directors or members of the Jorgensen Super Fund for the period 1 January 2007 to 29 October 2010;
25. The trust deed establishing the Jorgensen Super Fund and any document recording any variation thereto;
26. Any correspondence between you, Triflex, TAPL and/or TMPL to Mitchell & Partners or any other Advisor in relation to the preparation of Financial Statements and Taxation Returns for the financial years ending 30 June 2007, 30 June 2008, 30 June 2009 and 30 June 2010.
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Decision last updated: 12 November 2012
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