Re Australasian Liquid Storage Pty Ltd (in liq)

In the Federal Court of Australia, the liquidators of Australasian Liquid Storage Pty Ltd (in liquidation), Mr Cunningham and Mr Nogueira, applied for a summons under s 596B of the Corporations Act 2001 (Cth) against the Regulator under the Work Health and Safety Act 2011. The Company, which was engaged in the specialist manufacture and installation of large water tanks for commercial and industrial use, had gone into voluntary liquidation after a significant incident where one of its water tanks collapsed, resulting in injuries to third parties. The liquidators sought the summons to investigate whether there had been misconduct in relation to the corporation and to obtain information about the examinable affairs of the corporation.

The court had to determine whether the requirement under s 596B(1)(b)(ii) that a person may have information about "examinable affairs" was satisfied, and whether the discretion under s 596B should be exercised. The court also had to consider the matters to be established for the issuing of a summons under s 596B(1) and whether s 596B could be used for the sole purposes of obtaining documents.

The court found that the liquidators had not established a prima facie case for the exercise of the discretion under s 596B. The court held that the liquidators had not satisfied the requirement under s 596B(1)(b)(ii) that the person summoned may be able to give information about examinable affairs of the corporation. The court also found that the liquidators had not established that the exercise of the discretion under s 596B was appropriate in all the circumstances. The court held that s 596B could not be used for the sole purposes of obtaining documents. The court refused the application for a summons under s 596B and made an order under s 597(9) for the production of documents.

The court ordered that the Regulator under the Work Health and Safety Act 2011 produce at the examinations in this Court certain documents in their possession which are relevant to the collapse of a water tank on 16 October 2015 at the Sunshine Coast University Hospital. The Regulator may apply to this Court on two days’ notice in writing to set aside, vary or alter the terms of order 3 hereof. The applicants’ costs of this application be their costs in the winding up.