Peter John Whelan v Australian Securities Commission

[1993] FCA 1083

IN THE FEDERAL COURT OF AUSTRALIA	)
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SOUTH AUSTRALIA DISTRICT REGISTRY	) No. SG 51/93
GENERAL DIVISION

BETWEEN :

PETER JOHN WHELAN

Applicant

AND:

AUSTRALIAN SECURITIES

COMMISSION

Respondent

CORAM: BEAUMONT J.

DATE : 13 OCTOBER 1993

EX TEMPORE REASONS ON APPLICATION FOR ORD

THAT SEPARATE OUESTIONS BE DETERMINED

Before the Court is a Notice of Motion, filed on 17 September 1993, for the summary dismissal of the principal proceedings. Having embarked upon the hearing of the Notice of Motion, I explored with Counsel the possibility that an order should be made pursuant to Order 29 of the Rules of Court that certain questions be determined separately at this stage of the principal proceedings. Subject to one matter, Counsel were agreed that this appeared to be an appropriate course. The qualification, the force of which is apparent, is that Mr. England, who is the applicant in proceedings No. SG3017 of 1993, should be given an opportunity to intervene in the current matter.

As it happened, matter No. SG3017 of 1993 was listed

for directions at the same time as the hearing of the present

motion. Mr. Comazzetto, who appears for Mr. England,

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participated, at my invitation, in the discussion with Counsel in the present matter concerning the foreshadowed order for the determination of a separate question pursuant to Order 29. The discussion with Counsel and with Mr. Comazzetto proceeded on the footing that, if orders for the determination of separate questions were to be made, it would be at least desirable, and perhaps necessary, if the parties were to agree upon the relevant facts.

There is in evidence before me in the current motion, material which suggests that there is, in truth, no room, or at least no real room, for dispute as to the facts. For the record, it should be noted that I refer in this connection to the affidavit of J.C. Clarke sworn 19 May 1993, (which became Exhibit A), the affidavit of A.L. Paltridge sworn 17 September 1993, a request for particulars filed in Court on 17 June 1993 and amended answers thereto filed in Court on 8 October 1993, an affidavit of P.G. Whelan sworn 8 October 1993 and the Trust Deed dated 8 October 1985 (which became Exhibit B).

In the context of that evidence, the parties have suggested, and on the present material I am disposed to agree, that the following facts have been established:

1. Mr. England as receiver is a "private" receiver appointed pursuant to the Trust Deed. (I say a "private" receiver to distinguish him from a Court-appointed receiver.)

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2.   The Australian Securities Commission, as it has this morning indicated to the Court through its Counsel, does not wish to examine Mr. Whelan in its own right or to fund any such examination; but it is prepared to permit

Mr. England, as receiver, so to examine at his own

expense.

3 ,	Mr. England, as receiver, seeks to investigate in the examination, inter alia, the question whether there exists a potential claim by the trustee for the debenture holders, or by the debenture holders themselves, against
Mr. Whelan in relation to the affairs of the company
(Harrisons Australia Limited).

As I have said, the material before me would suggest that there is no room for dispute about these facts. However, it is clear that, although Mr. England is not a party to the present proceedings, he has not only a real interest in their outcome but also an obvious interest (1) in findings of fact being made in respect of matters to which I have referred; or '(2) in the notation by the Court of the circumstance that the parties to the present matter have agreed on those facts. For that reason I have given Mr. Comazzetto an opportunity to seek instructions on the question whether I should note facts 1, 2 and 3 above as agreed facts.

I have indicated to Mr. Comazzetto .that I will hear him further on this matter at 2.15 p.m. to-day, on the

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assumption that he can obtain instructions in that time. It is fair to say that Mr. Comazzetto has already indicated that he does not anticipate any difficulty in this regard. For this reason, it is not appropriate that I make any order for the determination of a separate question at this stage. I have further indicated to Mr. Comazzetto that, if I were to make such orders, I would afford his client an opportunity to be heard on the arguments to be advanced by the present parties in that connection before any decision was made. (I have already made it clear that I would propose to reserve my decision on any separate question or questions in any event. )

For the purposes of the record, it should be stated that the present parties have asked me to order that the following questions be determined as separate questions -

1. Should the orders of the Registrar made 27 April 1993 in this matter be set aside?

2.   Was the purported authorisation dated 13 October 1992 made in this matter a valid authorisation?

I will hear further argument in the motion at 2.15

p.m. to-day.

I hereby certify that the preceding three

(3) pages are a true copy of the Ex

Tempore Reasons on Application for Orders that Separate Questions be determined made

Date: 1 2 Q&& fe

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