Onefone Australia Pty Ltd v One.Tel Ltd - [2009] NSWSC 865

CITATION: Onefone Australia Pty Ltd v One.Tel Ltd [2009] NSWSC 865
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19/08/09, 24/08/09, 25/08/09

JUDGMENT DATE :
25 August 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 25 August 2009

DECISION: Confidentiality order in part discharged.

CATCHWORDS: PROCEDURE - confidentiality order previously made by consent - one party seeks discharge of order - compromise that order to be discharged as to certain items only - certain other items remain in dispute - assessment by court of need for continued confidentiality of those items - CORPORATIONS - creditors' voluntary winding up - roles of special purpose liquidator and committee of inspection - source of confidentiality constraints upon them - confidentiality a product of duties of each to use information for proper purposes and in interests of general body of creditors - need for forthcoming meeting of creditors to consider mistrust and friction existing between special purpose liquidator and committee of inspection

CATEGORY: Principal judgment

CASES CITED: Onefone Australia Pty Ltd v One.Tel Ltd [2008] NSWSC 1335; (2008) 69 ACSR 290

PARTIES: Onefone Australia Pty Limited - First Plaintiff
DCA Resources Australia Pty Limited - Second Plaintiff
Pacific Finance Group Pty Limited - Third Plaintiff
Concept Systems (Australia) Pty Limited - Fourth Plaintiff
One.Tel Limited (in liquidation) - First Defendant
Steven Sherman - Second Defendant
Peter Walker - Third Defendant
John Deloughery, Barbara Galloon, Gary Phillips, Alex Roth - Applicants
Paul Gerard Weston - First Respondent
Optus Mobile Pty Limited - Second Respondent

FILE NUMBER(S): SC 5291/03

COUNSEL: Mr C R C Newlinds SC/Mr D T Kell - Applicants
Mr N A Cotman SC/Mr R D Glasson - First Respondent

SOLICITORS: Baker & McKenzie - Applicants
NOT Lawyers - First Respondent

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY 25 AUGUST 2009

5291/03 ONEFONE AUSTRALIA PTY LIMITED & 3 ORS v ONE.TEL LIMITED & 2 ORS

JUDGMENT

1 In proceedings determined in November 2008, certain orders were made by consent. The parties to those proceedings were Mr Weston, the special purpose liquidator of One.Tel Limited, and the members of the committee of inspection in the creditors' voluntary winding up of One.Tel.

2 The November 2008 proceedings had at their centre matters of dispute concerning the activities of the special purpose liquidator and certain actions of members of the committee of inspection related to the litigation at the suit of One.Tel that represents the sole function of the special purpose liquidator.

3 Among the consent orders of 10 November 2008 was order 5, which was an order that certain affidavits and exhibits to them be kept confidential. This was one of several orders that both sides asked the court to make when they reached a consensual resolution of their immediate dispute. The court did not make any assessment of matters of confidentiality reflected in order 5.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 865
Decision Date: 25 August 2009

CaseChat Overview and Summary

Onefone Australia Pty Ltd applied for a discharge of a previously made confidentiality order in relation to its dispute with One.Tel Ltd. The application arose in the context of a creditors' voluntary winding up of One.Tel Ltd. The special purpose liquidator and the committee of inspection were parties to the confidentiality order. The court was required to determine the continued necessity of confidentiality in relation to certain items, while others were subject to compromise and discharge.

The court considered the sources and purpose of the confidentiality constraints imposed on the special purpose liquidator and the committee of inspection. It held that these constraints derived from their duties to use information for the proper purposes and in the interests of the general body of creditors. Given the mistrust and friction between the special purpose liquidator and the committee of inspection, the court assessed the need for continued confidentiality in light of an upcoming meeting of creditors. The court found that the continued confidentiality of certain items was necessary to facilitate the meeting and to address the existing mistrust and friction.

The court decided to discharge the confidentiality order in relation to certain items, allowing those to be disclosed. However, it maintained the confidentiality of other items, considering them necessary for the proper functioning of the meeting of creditors and to address the existing mistrust and friction between the special purpose liquidator and the committee of inspection. The court's decision balanced the need for transparency and disclosure with the necessity of maintaining confidentiality to protect the interests of the creditors.

Orders