Mohen As Liquidator Of MBP (WA) Pty Ltd [No 2]
[2023] WASC 88
•23 MARCH 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MOHEN AS LIQUIDATOR OF MBP (WA) PTY LTD [No 2] [2023] WASC 88
CORAM: LUNDBERG J
HEARD: 15 MARCH 2023
DELIVERED : 15 MARCH 2023
PUBLISHED : 23 MARCH 2023
FILE NO/S: COR 40 of 2023
MATTER: IN THE MATTER OF JEROME HALL MOHEN AS LIQUIDATOR OF MBP (WA) PTY LTD
EX PARTE
JEROME HALL MOHEN AS LIQUIDATOR OF MBP (WA) PTY LTD ACN 104 743 599
Plaintiff
Catchwords:
Practice and procedure - Application pursuant to Order 67B rule 5 of the Rules of the Supreme Court 1971 (WA) - Restricting access to liquidator's affidavit
Legislation:
Rules of the Supreme Court 1971 (WA), O 67B r 5
Result:
Restriction orders made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr N F Malone |
Solicitors:
| Plaintiff | : | Pragma Lawyers |
Case(s) referred to in decision(s):
AW v Rayney [No 4] [2012] WASCA 117.
Cargill Australia Ltd v Viterra Malt Pty Ltd [No 23] [2019] VSC 417.
Cockburn Cement Limited v The Minister for Environment [2019] WASC 9.
LUNDBERG J:
(This judgment was delivered ex temporaneously on 15 March 2023 and has been edited from the transcript to correct matters of grammar and include complete references.)
These reasons concern part of the relief sought by the plaintiff in the originating process dated 13 March 2023 (Originating Process), namely proposed order 2 which seeks an access restriction order pursuant to O 67B r 5(3) of the Rules of the Supreme Court 1971 (WA) (RSC). The plaintiff is the liquidator of MBP (WA) Pty Ltd.
The court is making arrangements for the substantive orders sought in the Originating Process to be heard and determined on Friday, 17 March 2023. However, in the interim, it is necessary for proposed order 2 to be dealt with.
Specifically, orders are sought to have the supporting affidavit of Jerome Hall Mohen sworn on 10 March 2023 (Mohen Affidavit), treated as confidential, with access restricted to only the plaintiff and the court, until further order of this court. The matter is necessarily brought on today ex parte given the nature of the application.
A minute of proposed orders has been provided to the court today to further clarify the regime which is proposed by the plaintiff. The proposed orders are supported by the plaintiff's submissions dated 15 March 2023 and the affidavit of Nicholas Frances Malone sworn on 15 March 2023. I have had the opportunity to read those submissions and the affidavit of Mr Malone, as well as hear oral submissions from counsel during the course of the hearing today.
Order 67B r 5 RSC provides as follows:
(1)The Court may make an order under this rule -
(a)on its own initiative; or
(b)on the application of any person.
(2)An application for an order made under subrule (3) must do the following -
(a)state the grounds for the application;
(b)identify the information, record or thing to which the order should apply;
(c)state the person, or class of persons, whose access to the information, record or thing should be restricted by the order;
(d)state any conditions that should apply if the Court were to give access to the information, record or thing;
(e)state the period for which the order should apply.
(3)The Court may make an order that restricts access to information or a record or other thing if it considers -
(a)that the information, record or thing is the subject of a pending claim that it is privileged or confidential; or
(b)that the information, record or thing is privileged or confidential; or
(c)that in the interests of justice, access to the information, record or thing should be restricted.
(4)An order made under subrule (3) must include the reasons for it and sufficient information to identify clearly -
(a)the information, record or thing to which the order applies; and
(b)the person, or class of persons, whose access to the information, record or thing is restricted by the order; and
(c)any conditions that will apply if access to the information, record or thing were to be given by the Court; and
(d)the period during which the order applies.
(5)The Court may at any time, by order, amend or cancel an order made under subrule (3).
(6)If an application is made for an order made under subrule (3) in respect of information or a record or other thing, access to the information, record or thing is taken to be unavailable to all but the Court and the applicant until the application is decided.
Counsel for the plaintiff has properly identified the relevant principles in his submissions, including the open justice principle as discussed in both AW v Rayney [No 4] [2012] WASCA 117 [29] ‑ [34] (Buss JA, as his Honour then was) and Cargill Australia Ltd v Viterra Malt Pty Ltd [No 23] [2019] VSC 417 [65] ‑ [73] (Elliott J), and the background to O 67B RSC as outlined by Allanson J in Cockburn Cement Limited v The Minister for Environment [2019] WASC 9.
By way of context to O 67B r 5 RSC, I refer to the following passages from Allanson J's decision in Cockburn Cement:
[1]The common law does not recognise a right to obtain access to a document that has been filed in proceedings and is held as part of a court record. Order 67 r 11 (now repealed) of the Rules of the Supreme Court 1971 (WA) required the leave of the court or a registrar for a person to inspect and take a copy of documents on the court record. Following the introduction of electronic filing in the court, O 67 r 11 was repealed. Access to the court records (including information and other things held by the court) is now governed by O 67B.
[2]The present application is about restricting access by persons who are not parties to the action.
[3]A person who is not a party to proceedings is entitled to limited information, as of right, under O 67B r 6. Otherwise, by O 67B r 11(3), a person who wants access to information or a record or other thing must apply for access. The application is made to the principal registrar, and the applicant need not serve the application on, or give notice of it to, any person unless the court orders otherwise. Under O 67B r 12, the court may order the application be served on a person specified in the order, and may request any person to give it submissions about the application.
[4]A person who wishes to have access to the court record restricted, can apply for an order under O 67B r 5. By sub‑rule (3) the Court may make an order that restricts access to information or a record or other thing if it considers
(a)that the information, record or thing is the subject of a pending claim that it is privileged or confidential; or
(b)(that the information, record or thing is privileged or confidential; or
(c)that in the interests of justice, access to the information, record or thing should be restricted.
[5]An application for an order under sub-rule (3) must
(a)state the grounds for the application;
(b)identify the information, record or thing to which the order should apply;
(c)state the person, or class of persons, whose access to the information, record or thing should be restricted by the order;
(d)state any conditions that should apply if the Court were to give access to the information, record or thing;
(e)state the period for which the order should apply.
As Allanson J explained in Cockburn Cement, O 67B does not require that an applicant show that the confidential information has commercial value. An order under this provision could extend to discussions, correspondence and consultation that occurred in confidence.[1] Further, the grounds in O 67B r 5(3) are alternatives; if the information is confidential, the applicant does not also need to show that an order restricting access is in the interests of justice.[2]
[1] Cockburn Cement [22] (Allanson J).
[2] Cockburn Cement [18] (Allanson J).
The circumstances before the court in Cockburn Cement are different to the present matter, in at least two respects. First, the affidavit in that case was rather voluminous, compared to the Mohen Affidavit which is relatively modest in length. Second, the order that was sought before his Honour was to restrict access to the relevant material by persons who were not parties to the action. The order sought in the present application is to restrict access to the Mohen Affidavit by people who may become parties, or at least are presently interested persons for the purposes of these proceedings.
It is clear to me that the material which is contained in the Mohen Affidavit, which I will not, for obvious reasons, identify with any great precision, are matters which are properly the subject of an application of this type. The material contained therein is provided to the court to support the liquidator's application for an extension of time under s 588FF(3) of the Corporations Act 2001 (Cth) to bring proceedings in respect of potential voidable transactions. The substance of the affidavit thus deals with the potential for claims to be brought by the liquidator on behalf of the company as against third persons. In my view, disclosure of this type of information would necessarily provide a strategic and forensic benefit to the putative defendants in any prospective future litigation.[3]
[3] By way of partial analogy, and in support of the restriction application, counsel for the plaintiff referred to the manner in which Australian courts deal with confidential affidavits filed by liquidators in support of public examination applications under ss 596A and 596B of the Corporations Act 2001 (Cth).
I have discussed with counsel for the plaintiff whether there might be merit in fragmenting the restriction order in the sense of allowing access to particular portions of the affidavit, which are (or may be) in the possession of some of the interested persons, or which are publicly available. Having heard from counsel on this issue, I am satisfied there is little utility in undertaking that process. I say this because the restriction orders are subject to any further order being made and it remains open for any of the interested persons to make application to vary the order in due course.
Accordingly, I am satisfied that the information in the Mohen Affidavit is confidential and of a type which ought not be available to persons other than the plaintiff, and so I am satisfied the relevant prerequisites under O 67B r 5(3) RSC have been made out.
I will now make orders pursuant to O 67B r 5(3) RSC, largely in accordance with the plaintiff's minute of proposed orders, together with orders to program the substantive application to a final hearing on 17 March 2023 (and to require further notice be given to the interested persons of that listing). The orders made are set out in Attachment A to these reasons.
ATTACHMENT A
ORDERS MADE BY THE COURT ON 15 MARCH 2023
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SAO
Associate to the Honourable Justice Lundberg
23 MARCH 2023
0
3
1