Re Bill Express Limited (In Liq) - [2015] VSC 225

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

Not Restricted

COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST

S CI 2011 06842

IN THE MATTER OF BILL EXPRESS LIMITED (In Liquidation) (ACN 090 059 564)

CRAIG DAVID CROSBIE AND IAN MENZIES CARSON (in their capacity as joint and several liquidators of BILL EXPRESS LIMITED (In Liquidation) ACN 090 059 564)) AND ANOTHER AS SET OUT IN THE SCHEDULE OF PARTIES	Plaintiffs
v
PREPAID SERVICES PTY LIMITED (ACN 094 689 219) AND OTHERS AS SET OUT IN THE SCHEDULE OF PARTIES	Defendants

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2015
DATE OF RULING:	16 April 2015
CASE MAY BE CITED AS:	Re Bill Express Limited (In Liq)
MEDIUM NEUTRAL CITATION:	[2015] VSC 225

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PRACTICE AND PROCEDURE — Application by the plaintiffs to use documents discovered by the defendants in other proceedings brought by the plaintiffs relating to or arising out of the winding up of the second plaintiff — Whether Court approval is required where the party giving discovery consents to the application — Application granted — s 27(b) of the Civil Procedure Act 2010.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms W A Harris, one of Her Majesty’s Counsel with Dr O Bigos	Herbert Smith Freehills
For the Defendant	Mr D F McAloon	Minter Ellison

HIS HONOUR:

In this proceeding, the liquidators of Bill Express Limited (in liquidation) (the liquidators) and Bill Express Limited (in liquidation) (Bill Express) have issued proceedings against Optus and related companies seeking to set aside certain payments to Optus and related companies as preferences.

I shall refer to this proceeding as the preference proceeding, matter no 6842 of 2011. Bill Express and the liquidators have also instituted proceedings against the directors of Bill Express for trading whilst insolvent and seek damages against them. I shall refer to this proceeding as the insolvent trading proceeding, matter no 3401 of 2014.

In the insolvent trading proceeding, the plaintiffs have engaged separate solicitors, Johnson, Winter and Slattery, to those engaged in the preference proceeding. In the preference proceeding the plaintiffs have engaged Herbert Smith Freehills.

The liquidators have also instituted proceedings against the auditors of Bill Express. I understand that the defendants are KPMG and Pitcher Partners. I shall call this proceeding the auditor proceeding, matter no 5152 of 2011. The solicitors for the plaintiff in the auditor proceeding are also Johnson, Winter and Slattery.

The application before me is brought by way of an interlocutory process. The application is made by the plaintiffs under s 27(3)(b) of the Civil Procedure Act 2010 and the inherent jurisdiction of the court to be released from their obligation under s 27(1) of the Act and implied under common law in respect of certain documents discovered by the defendants to the plaintiffs in the preference proceeding.

On the facts stated in the supporting affidavit of Alan James Mitchell dated 13 April 2015 and the affidavit of Benjamin William Charles Renfry dated 2 April 2015, the…

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: [2015] VSC 225
Decision Date: 16 April 2015

CaseChat Overview and Summary

Re Bill Express Limited (In Liq) involved the liquidators of Bill Express Limited seeking to use documents discovered by the defendants in other proceedings brought by the plaintiffs. These other proceedings were related to or arose from the winding up of the second plaintiff. The key issue before the court was whether approval from the Court was necessary for the use of these documents, given that the party providing the discovery had consented to the application. The court considered the provisions of section 27(b) of the Civil Procedure Act 2010, which outlines the circumstances under which a party may apply to use documents discovered by another party. The court found that since the party providing the discovery had given their consent, the application for permission to use the documents did not require the court’s approval.

The court’s reasoning was grounded in the principle that the consent of the party providing the discovery could suffice under certain conditions, eliminating the need for the court’s intervention. This principle was consistent with the statutory framework and aimed to facilitate efficient use of documents in litigation where consent was forthcoming. The court granted the application, allowing the liquidators to use the documents discovered by the defendants in the other proceedings. This decision underscored the importance of consent in procedural matters and its effect on the requirements for court approval.

Orders