PFL Ltd v The Public Trustee of Queensland

[2008] WASC 247

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PFL LTD -v- THE PUBLIC TRUSTEE OF QUEENSLAND  [2008] WASC 247

CORAM:   MARTIN CJ

HEARD:   9 SEPTEMBER 2008

DELIVERED          :   9 SEPTEMBER 2008

PUBLISHED           :  29 OCTOBER 2008

FILE NO/S:   CIV 2062 of 2008

BETWEEN              :PFL LTD formerly known as PALANDRI FINANCE LTD (Administrators Appointed) (ACN 090 580 500)

First Plaintiff

NEIL ROBERT CUSSEN, GARY PETER DORAN, JOHN LETHBRIDGE GREIG AS VOLUNTARY ADMINISTRATORS OF PFL LTD formerly known as PALANDRI FINANCE LTD (Administrators Appointed) (ACN 090 580 500)
Second Plaintiff

AND

THE PUBLIC TRUSTEE OF QUEENSLAND
First Defendant

JOHN VERHELST
Second Defendant

CURTISS TEBBUTT
Third Defendant

FILE NO/S              :CIV 2064 of 2008

BETWEEN              :PWL LTD formerly known as PALANDRI WINES LTD (Administrator Appointed) (ACN 084 252 488)

First Plaintiff

NEIL ROBERT CUSSEN, GARY PETER DORAN, JOHN LETHBRIDGE GREIG AS VOLUNTARY ADMINISTRATORS OF PWL LTD FORMERLY KNOWN AS PALANDRI WINES LTD (Administrators Appointed) (ACN 084 252 488)
Second Plaintiff

AND

THE PUBLIC TRUSTEE OF QUEENSLAND
First Defendant

MARK SELBY-HELE
Second Defendant

Catchwords:

Notice to Produce - Relevance of documents - Turns on own facts

Legislation:

Nil

Result:

Discharge of Notices to Produce without requiring documents to be produced

Category:    B

Representation:

CIV 2062 of 2008

Counsel:

First Plaintiff                :     Mr D K Skender

Second Plaintiff            :     Mr D K Skender

First Defendant             :     Mr B Dharmananda

Second Defendant         :     Mr K A Dundo

Third Defendant           :     Mr K A Dundo

Solicitors:

First Plaintiff                :     McKenzie Moncrieff Lawyers

Second Plaintiff            :     McKenzie Moncrieff Lawyers

First Defendant             :     Minter Ellison

Second Defendant         :     Q Legal

Third Defendant           :     Q Legal

CIV 2064 of 2008

Counsel:

First Plaintiff                :     Mr D K Skender

Second Plaintiff            :     Mr D K Skender

First Defendant             :     Mr B Dharmananda

Second Defendant         :     Mr K A Dundo

Solicitors:

First Plaintiff                :     McKenzie Moncrieff Lawyers

Second Plaintiff            :     McKenzie Moncrieff Lawyers

First Defendant             :     Minter Ellison

Second Defendant         :     Q Legal

Case(s) referred to in judgment(s):

Nil

MARTIN CJ: 

(This judgment was delivered extemporaneously on 9 September 2008 and has been edited from the transcript)

1. There are proceedings before the court in which the first plaintiffs, through the second plaintiffs, who are the administrators of various companies that I need not identify, seek declaratory relief and/or directions with respect to various matters that are related to meetings of creditors that are proposed to be held.  Dealing with Originating Summons of CIV 2062 of 2008, there are declarations sought with respect to the validity of trusts and the validity of a security and also declarations as to which of either the debenture holders or the Public Trustee of Queensland (Public Trustee) is entitled to vote in respect of certain debts at the meeting of creditors.  Relief of a similar kind is sought in matter CIV 2064 of 2008.  In that matter, again declarations are sought with respect to the validity of a trust, the validity of a security and declarations as to entitlements to vote.

2. On 5 September 2008, the second and third defendants in CIV 2062 of 2008 and the second defendant in 2064 of 2008 issued Notices to Produce.  I  will not set out the terms of the Notices to Produce.  It is sufficient to say that objection is made to production of the documents on behalf of the Public Trustee on two grounds.  The first is that the documents sought are irrelevant to the matters to be resolved in the proceedings to which I have referred and, secondly and alternatively, if production was enforced, it would be both oppressive and would prejudice the expeditious resolution of the proceedings.

3. Dealing firstly with the question of relevance, the parties issuing the Notices to Produce justify the relevance of the documents sought on two separate grounds.  The first ground which is said to justify a number of the categories of documents sought is that they go to the question of the assets which would be the subject of the trust and/or the security in respect of which declaratory relief is sought.  In my opinion, no question presently arises under the summonses that have been issued that would require the court to ascertain the extent of the assets, if any, in the trust or which are subject to the securities that are the subject of the declaratory relief.  It does not seem to me to be relevant to the relief sought to know whether there are any assets that would be the subject of the trusts or the securities, and indeed an inquiry as to the precise extent of the assets that would be the subject of the trusts or the securities may be quite a complex and factually controversial matter that does not seem to me to be relevant to the declaratory relief sought.  The parties who issue the Notices to Produce do not assert that the relief sought is moot because there are no assets the subject of either the trust or the security.  It therefore seems to me that the pursuit of documents going to the precise extent of those assets is properly characterised as a fishing expedition in relation to an issue that the defendants have not yet raised.

4. The second basis upon which the production of the documents sought is said to be justified is to identify the extent to which the Public Trustee might be a creditor in its own right and might seek to vote at the meeting of creditors in that capacity.  To support inquiry into that question, documents are sought covering all the remuneration chargeable by the Public Trustee, any legal fees incurred by the legal adviser to the Public Trustee and expenses incurred by the Public Trustee.  Those documents are said to go to the question of whether there is a debt owing to the Public Trustee in respect of which the Public Trustee might seek to vote as a creditor in its own right.  Returning to the relief sought in each of the Originating Summonses, the relevant declaratory relief is couched in terms of whether each of the debenture holders or the Public Trustee is entitled to vote at particular meetings or to lodge proofs of debt.  Counsel for the administrators explained that the declaratory relief sought is meant to clarify the situation in respect of debts in relation to which there is a credible argument that one or other of the debenture holders or the Public Trustee might be the party relevantly entitled to vote or lodge a proof of debt or receive dividends.  Further, counsel for the administrators pointed out that it is not intended that the declaratory relief sought would extend to a situation in which there is no credible argument as to the identity of the party entitled to lodge a proof of debt and vote accordingly or receive dividends accordingly.  It is therefore clear that so construed, the relief sought will not canvass any issue relating to the capacity of the Public Trustee to vote as a creditor in its own right by reason of costs and expenses incurred and, for that reason, it seems to me that the question of whether the Public Trustee is a creditor in its own right is not relevant to the relief sought.

5. For those reasons I have come to the conclusion that the documents sought are not relevant to these proceedings and it is not necessary therefore for me to deal with the second ground of opposition to the Notices to Produce.  I will discharge the Notices to Produce without requiring the documents to be produced.