Re Bill Express Limited (No. 2)
[2010] VSC 639
•24 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST - E
No. S CI 2009 10799
IN THE MATTER OF BILL EXPRESS LIMITED (IN LIQUIDATION)
(ACN 090 059 564)
| CRAIG DAVID CROSBIE AND IAN MENZIES CARSON (as joint and several liquidators of Bill Express Limited) (IN LIQUIDATION) (ACN 090 059 564) | Applicants |
| - And- | |
| PETER COUPER | Respondent |
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JUDGE: | GARDINER As J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2010 | |
DATE OF JUDGMENT: | 24 November 2010 | |
CASE MAY BE CITED AS: | Re Bill Express Limited (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 639 | |
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CORPORATIONS – EXTERNAL ADMINISTRATION – Examination of directors and other persons pursuant to Section 596A and 596B of the Corporations Act 2001 (Cth) – Application by liquidators for order under s 597(13) of the Corporations Act2001 (Cth) that questions put and answers given by examinee during examination be recorded in writing and that examinee sign written record – Whether such orders sought are required to be made at commencement of the examination – ASIC seeking leave to make submissions as an interested party pursuant to Rule 2.13 of the Supreme Court (Corporations) Rules 2003 - Examinee seeking to prevent access to transcript of examination to ASIC – Orders made that questions put to examinee and answers given at examination be recorded in writing and that examinee sign written record – Refusal to make directions preventing access of written record to ASIC under s 596F(1)(f) of the Corporations Act 2001 (Cth).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Bick QC with Mr K Tsiakis | Freehills |
| For the Australian Security and Investments Commission | Mr C Truong | ASIC |
| For Mr Couper | Mr ME Dean SC with Mr JP Moore | Mills Oakley Lawyers |
HIS HONOUR:
On 21 December 2009, orders were made on the application of the plaintiffs, Messrs Crosbie and Carson, who are the liquidators of Bill Express Limited (in liq) (“Bill Express”) for the issue of summonses under ss 596A and 596B of the Corporations Act2001 (Cth) (“the Act”) directed to 15 persons who were summonsed to attend the Court for examination about the affairs of Bill Express and its subsidiaries. Those persons were also required to produce the documents specified in the schedule to the summonses directed to them. One of the persons summonsed was Mr Peter Couper.
On 7 January 2010, Mr Couper and another examinee, Mr Sandro Di Donato, were served by arrangement with the summonses directed to them by service upon their solicitors, Mills Oakley Lawyers.
Mr Couper, together with Mr Di Donato, filed an interlocutory process on 12 January 2010 seeking orders that the summonses issued against them be discharged or varied. On 5 March 2010, I dismissed that application and a subsequent appeal to Davies J was dismissed on 31 March 2010[1].
[1]Di Donato & anor v Crosbie& anor (2010) 77 ACSR 556.
Subsequently, Mr Couper produced documents to the Court in answer to his summons. The examination of Mr Couper commenced on 11 May 2010 and continued on 13, 19 and 20 May 2010.
The summons directed to Mr Couper was issued pursuant to s 596B of the Act in Form 17 of the Supreme Court (Corporations) Rules 2003. Segment B of the summons states:
The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you.
The plaintiffs seek an order from the Court under s 597(13) of the Corporations Act that the questions put and the answers given by Mr Couper during his examination be recorded in writing, and that Mr Couper sign that written record. ASIC have sought to be heard on this issue. It supports the plaintiffs’ application.
Mr Couper submits that there should be no such order because first, an order under s 597(13) can only be made at the commencement of an examination and secondly, such an order is discretionary and in this case that discretion should be exercised against making such an order as to do so would cause an injustice to Mr Couper. In addition, Mr Couper seeks a direction under s 596F(1)(e) that in the event that an order under s 597(13) is not made, the transcript of the examination not be inspected by or provided by the plaintiffs to ASIC.
Background
The examination of Mr Couper commenced on the afternoon of 11 May 2010, directly after the examination of Mr Di Donato had concluded. In his examination, Mr Di Donato had been represented by Mr Marcus Clarke of Counsel who was instructed by Mills Oakley Lawyers. Mr Dean SC, together with Mr J Moore of Counsel, also instructed by Mills Oakley Lawyers, announced their appearance on behalf of Mr Couper.
At the commencement of the examination, which was being recorded by a court transcription agency, Mr Dean indicated that Mr Couper had already been examined pursuant to s 19 of the ASIC Act and been the subject of a cautioned record of interview relating to matters involving Bill Express. In addition, Mr Couper had received correspondence from ASIC requesting him to attend a further interview. Mr Dean indicated that he was instructed that there were ASIC investigators present in Court. He submitted that it may not be appropriate for them to be present when questions to which Mr Couper was going to be asked to respond, touched on matters about which he had already been questioned by ASIC or about which they proposed to conduct a further cautioned interview with Mr Couper.
Mr Dean also foreshadowed that at some juncture the question of whether the examination should be conducted in private might arise. In response to an observation from me that ASIC would have access to the transcripts of this examination, Mr Dean responded that they may, but otherwise he did not at that juncture agitate the issue of whether Mr Couper should be required to sign a record of his examination.
In response to Mr Dean’s observations, counsel for the plaintiffs, Mr Bick QC, noted that the Corporations Act provides that ASIC or anyone authorized by it could be conducting the examination. The liquidators were obliged to inform ASIC that they were conducting the examination and that had been done.
No application was made on behalf of Mr Couper in the course of the examination that it be held in private or that representatives of ASIC be excluded from the examination.
Before the examination commenced, Mr Couper was reminded by me that he was before the Court pursuant to a summons which had been issued against him at the behest of the liquidators of Bill Express. It was indicated to him that it was a formal examination conducted under the provisions of the Corporations Act which was broad ranging in its scope. He was reminded that he had sworn an oath, that his testimony was sworn testimony and that he was not excused from answering questions put to him on the grounds that the answer he gave might tend to incriminate him. Mr Couper was also informed by me of his right to claim privilege in respect of answers which he considered may tend to incriminate him.
Mr Couper claimed such a privilege in respect of each answer he gave to the examination, save for the details requested of him as to his name, residential address and occupation. At the outset of his examination, Mr Bick reminded Mr Couper to “speak clearly and answer into the microphone”, stating “it is necessary for the transcript people to be able to hear you.” In my view, it was clear to Mr Couper and those representing him that his testimony was being recorded.
Mr Bick did not seek orders at the commencement of the examination under s 597(13) that Mr Couper’s testimony in the examination be recorded in writing or that Mr Couper be required to sign the transcript of his examination.
In the examinations which had preceded Mr Couper’s (save for Mr Di Donato’s whose examination was adjourned to a date to be fixed without other orders), such orders were sought and made at the conclusion of the examination of each examinee. Representatives of Mills Oakley Lawyers were present in Court during those other examinations. Mills Oakley had also represented Ms Tracey Wegener at the examination conducted of her. At the conclusion of her examination on 10 March 2010, orders were sought and made that her testimony be recorded in writing and that she sign the transcript.
During the third day of Mr Couper’s examination, on 19 May 2010, Mr Dean observed that in the questions being asked of Mr Couper, Mr Bick had been making reference to a transcript by page and line number. Mr Dean stated that no orders had been made in respect of transcript. Discussion then ensued concerning the transcript and access to it. Mr Bick indicated that ultimately Mr Couper would not be prevented from gaining access to the transcript and that he would be asked to sign a copy of it having first being provided with it to check it for accuracy. Mr Bick stated that the other option was to have the transcription service certify it as being accurate.[2] He indicated he and his clients were still considering which option to take up in that regard but it was likely that he would seek an order that Mr Couper sign the transcript of his examination. Mr Bick observed that such orders were made at the end of the examination of each previous examinee and he contemplated that that would be the course that would be followed in respect of Mr Couper.
[2]See rule 11.07 (a) and (b) of the Supreme Court (Corporations) Rules
Mr Dean contended that the authorities stated that any orders regarding transcripts should be made before the examination commenced and whether such an order should be made was a discretionary matter. He went on to submit that unless the transcript was signed, the provisions of s 597(14A), which provided for inspection of the written record, would not apply. He contended that if a transcript officer signed it as contemplated by r 11.7 of the Supreme Court (Corporations) Rules, the provisions of s 597(14A) did not apply, as that provision only involved written records made under section 597(13), which he contended were required to be signed by the examinee. Mr Dean stated that submissions would be made at the conclusion of the examinations about that issue.
Directions were made for the issue to be argued after the remainder of the examinations had concluded.
Legislative scheme
Section 597 of the Act provides relevantly:
(12)A person is not excused from answering a question put to the person at an examination on the ground that the answer might tend to incriminate the person or make the person liable to a penalty.
(12A)Where:
(a)before answering a question put to a person (other than a body corporate) at an examination, the person claims that the answer might tend to incriminate the person or make the liable to a penalty; and
(b)the answer might in fact tend to incriminate the person or make the person so liable;
The answer is not admissible in evidence against the person in:
(c)a criminal proceeding; or
(d)a proceeding for the imposition of a penalty;
Other than a proceeding under this section, or any other proceeding in respect of the falsity of the answer.
(13)The Court may order the questions put to a person and the answers given by him or her at an examination to be recorded in writing and may require him or her to sign that written record.
(14)Subject to sub-s (12A), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules, may be used in evidence in any legal proceedings against the person.
(14A)A written record made under sub-s (13):
(a)is to be open for inspection, without fee, by:
(i)the person who applied for the examination; or
(ii)an officer of the corporation; or
(iii)a creditor of the corporation; and
(b)is to be open for inspection by anyone else on paying the prescribed fee.
Rule 11 of the Supreme Court (Corporations) Rules 2003 provides relevantly:
11.6If a Court makes an order in relation to an examination under sub-s 597(13) of the Corporations Act, the Court may give directions for the filing of the written record of the examination.
11.7For the purposes of sub-s 597(14) of the Corporations Act, a transcript of an examination may be authenticated –
(a)by the person, or persons, who prepared the record of examination, or under whose supervision the record was prepared, certifying in writing signed by the person or persons, that the record is a true transcript of the record of the examination; or
(b)by any person present at the examination, or any part of the examination, signing the person’s name at the bottom of each page of the written record that records a part of the examination at which the person was present.
11.9 (1) This rule applies if –
(a)an examination under s 597 of the Corporations Act is held wholly or partly in public; and
(b)a written record or transcript of the examination is filed in the Court.
(2) The person examined may apply to the Prothonotary, within three years after the date of completion of the examination, for a copy of the record or transcript of part of the examination of the person held in public.
(3) On receiving an application from a person under sub-rule (2), and any applicable fee, the Prothonotary must give a copy of the record or transcript to the person.
Mr Couper’s submissions
Mr Dean submitted that the plain meaning of s 597(13) is that an order under that provision is to be made, if at all, before the examination of a person begins and that there is no other way in which to construe the section and, in particular, the words “to be” where they appear. He made reference to the decision of Barrett J of the Supreme Court of New South Wales in Strarch International Limited v Loh[3] where his Honour stated at [28] of the judgment:
Because of the different rules, as to rights of inspection, applicable to different forms of written records of Part 5.9 examinations and the discretionary nature of s 597(13), it is desirable that the judicial officer presiding over an examination should, at the outset, invite submissions as to appropriate orders and directions on those matters from the examinee, the person upon who exercises application the examination summons was issued and any person who exercise the s 597(5A) right to take part in the examination. Explicit orders and directions should be made in the light of any such submissions and in a way that leaves no doubt about the status of any transcript or record for the purposes of the relevant statutory provisions.
[3](2005) 54 ACSR 481.
Mr Dean contended that there was no order expressly made at the outset of the examination and nothing was then said from which a s 597(13) order could be inferred or implied. He stated that it would appear that the transcript which recorded the examination was made at the instigation of the plaintiffs, and without any order being made by the Court that Mr Couper’s answers be recorded in writing. He contended, moreover, that the Court had no power to make an order that Mr Couper sign the transcript.
Mr Dean submitted that even if it was open to the Court to make an order at this point under s 597(13) in relation to the examination of Mr Couper, the Court, in exercising its discretion, should not make such an order. The terms of s 597(13) provide that the Court “may” order questions to be recorded in writing and “may” order that the examinee sign that written record. He contended that the discretionary nature of the power given by s 597(13) is confirmed by authority.[4] It was said that the liquidators would suffer no disadvantage if an order under s 597(13) was not made, as there will be an ability for s 597(14) to be used by the liquidators in any proceeding they commence against Mr Couper.
[4]Re Strarch International Limited (2005] NSWSC 583 at [26] (“Strarch 1”); Douglas-Brown v Furzer (1994) 13 ACSR 184 (WA Full Court) at 194.
Mr Dean says, however, that there is potential harm to Mr Couper if an order is made under s 597(13), as the availability of the written record to ASIC or the other authorities investigating allegations of criminal conduct by him would expose him to the real risk that they might use the record to gather evidence against him. Mr Dean says that that would constitute a serious infringement of his right not to incriminate himself and that the Court should be slow to make an order requiring him to perform an act that may assist ASIC in any criminal investigation of him.
Mr Dean contended that prejudice would arise from the danger of derivative use of the written record where the answers given compulsorily are not themselves admissible in criminal proceedings against the examinee. That is to say, while s 597(12A) prevents the answers given by Mr Couper being used in evidence against him in a criminal proceeding, they may put investigating authorities on a path which might enable them to obtain evidence against Mr Couper.
Reference was made by Mr Dean to the legislative precursor of s 597(12A), s 597(12) of the Corporations Law, which provided:
A person is not excused from answering a question put to him or her at an examination held pursuant to an order made under sub-s (3) on the ground that the answer might tend to incriminate him or her but, where the person claims, before answering the question, that the answer might tend to incriminate him or her, neither the answer, nor any information, document or other thing obtained as a direct or indirect consequence of the person giving the answer, is admissible in evidence against the person in criminal proceedings other than proceedings under this section or other proceeding in respect of the falsity of the answer. (emphasis added).
It was submitted by Mr Dean that the terms of s 597(12) of the Corporations Law (more particularly the words in italics) revealed an intention to preserve an examinee’s derivative use immunity. Mr Dean contended that notwithstanding the removal of the derivative use immunity which had existed under s 597(12) of the Corporations Law by the introduction of s 597(12A) of the Corporations Act, there is still a protection for examinees in respect of the rights and interests that derivative use immunity is designed to protect. This is because the Court has a discretion as to whether or not to order an examinee to sign a written record. Further, the use that may be made of answers obtained by way of compulsory examination is subject to the control of the Court.
It was said that by reason of the activities of ASIC thus far that it plainly considers that Mr Couper may have committed a criminal offence. For this reason, Mr Dean says, the Court should decline to order that Mr Couper sign the transcript in order to prevent the evidence which has been obtained in the examination being used against him indirectly in criminal proceedings.
Mr Dean then contended that the Court should make a direction preventing access to the transcript of Mr Couper’s examination to ASIC. Mr Dean says that under the provisions of s 596F(1)(e), the Court may at any time make directions about access to records of the examination, which expression included transcript of the examination. He made reference to the decision of Barrett J in Strarch (No. 1),[5] where Barrett J stated at [28]:
Where a transcript of an examination is made and authenticated as contemplated by s 597(14) but there is no order under s 597(13) (and accordingly no written record of questions and answers made pursuant to an order under s 597(13)), s 597(14A) does not create any right to inspect the particular form of record of the examination, being the transcript. A transcript of the kind mentioned in s 597(14) is therefore amenable to directions under s 597(F)(1)(e) in a way that a record made pursuant to an order under s 597(13) is not. That is a circumstance that would no doubt be relevant to a decision as the more appropriate way of proceeding in a particular case in which the existence of the statutory rights of inspection by s 597(14A) gave cause for concern.
[5][2005] NSWSC 583.
It was then contended that once the Court has determined in its discretion that Mr Couper should not be required to sign a written record of the examination, an order should be made restricting access to the transcript of the examination for the same reason, i.e. to prevent persons investigating and prosecuting Mr Couper as a result of pursuing paths of enquiry by reference to such transcript.
ASIC’s submissions
ASIC sought to be heard in relation to the application by the plaintiffs for orders under s 597(13). It was represented by Mr Truong of Counsel. Its right to be heard was resisted by Mr Dean. Mr Dean stated that ASIC’s entitlement to appear and make submissions in this proceeding is governed by s 597(5A) which provides as follows:
Any of the following may take part in an examination:
(a)ASIC;
(b)any other eligible applicant in relation to the corporation
and for that purpose may be represented by a lawyer or by an agent authorised in writing for the purpose.
Mr Dean contended that the examination in the matter was complete and that as ASIC did not take part in the examination, it did not therefore have standing to make submissions in respect to the application concerning the signing of the transcript.
I reject that submission. The examination has not yet formally concluded. In my view ASIC, as the regulatory authority with primary responsibility for the administration of the Act, is clearly an interested party. The collapse of Bill Express and its associated entities has given rise to a deficiency of a quarter of a billion dollars. The thrust of the submissions made on behalf of Mr Couper were designed to prevent ASIC, an organisation charged with the responsibility of prosecuting breaches of the Corporations Act, from obtaining access to the written record or transcript of Mr Couper’s examination. In Hamilton v Oades[6], Mason CJ observed:[7]
There are the two important public purposes that the examination is designed to serve. One is to enable the liquidator to gather information which will assist him in the winding up; that involves protecting the interests of creditors. The other is to enable evidence and information to be obtained to support the bringing of criminal charges in connection with the company’s affairs: Mortimer v Brown. … The examination is designed to elicit, among other things, evidence and information relating to the question whether the witness ‘has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to’ the corporation.
I note that the matters mentioned in quotation marks were a reference to the provisions of section 541(2)(a) of the Companies Code and identical provisions appear in the current legislation in s 596B(1)(b)(i).
[6](1988-1989) 166 CLR 486.
[7]At 496-497.
ASIC is an “eligible applicant” within the meaning of s 9 of the Act and could have itself obtained orders for and conducted the examination of Mr Couper and the other examinees and obtained a transcript of Mr Couper’s testimony. ASIC was provided with notice of the examination as required by r 11.3(6) of the Supreme Court Corporation Rules 2003. The clear purpose of that rule in my view is to require ASIC to be informed of certain specified types of matters which are the subject of applications to the court and in respect of which, as the regulatory authority, it may seek to intervene. I will grant ASIC leave to be heard in the examination as interested party under Rule 2.13 of the Corporations Rules.
ASIC supported the application by the plaintiffs that Mr Couper’s testimony at the examination be recorded in writing and that Mr Couper sign the transcript of his examination. Mr Truong contended that the terms of s 597(13) do not require that an order under that sub-section be made at the commencement of an examination. In addition, he stated that the observations made by the Court at the outset of the examination and the manner in which the examination has been conducted gave rise to an implication that the questions and answers given during the examination would be recorded in writing.
As to the discretionary considerations to be taken into account on the question of whether Mr Couper should be ordered to sign the transcript, Mr Truong submitted that there were both public and private interests to be considered. The first of these is that the examination process enables liquidators to gather information which will assist in the administration of the winding‑up and to enable evidence and information to be obtained to support the bringing of criminal charges in respect of the company’s affairs.[8] The Full Court of the Supreme Court of Western Australia (Malcolm CJ, Ipp and Anderson JJ) in Douglas Brown v Furzer[9] stated that:
Taking all the provisions together, the intention of the legislation, appears to be that such examination should now be carried out in such a way which will facilitate not only investigations but also the prosecution of civil and criminal proceedings, whether contemplated or already commenced, including civil proceedings by individual creditors.
[8]Hamilton v Oades (1989) 166 CLR 486 at 496 per Mason CJ.
[9](1994) 13 ACSR 184; 11 WAR 400
Mr Truong submitted that the interest of an individual should not prevail over the public needing to be informed about misconduct in relation to the affairs of a company under examination, beyond the statutory safeguards provided by section 597 (12A). He submitted that, as the Full Court observed in Douglas-Brown v Furzer, the provisions are designed to assist the prosecution of criminal proceedings, whether contemplated or already commenced.
Mr Truong also pointed to other considerations, such as the deterrent effect, in that the examination process is a mechanism of reminding officers of companies that they may be examined publicly in the event of the failure of a corporation. Mr Truong stated that the publicity which attends examinations is a price paid for the privilege of incorporation and that, save for a specific order of the Court, examinations are generally held in public. He noted that Mr Couper did not seek to have any aspect of the examination conducted in private.
Mr Truong stated that ASIC recognised that the availability of the written record would expose Mr Couper to the real risk that regulatory authorities would use the record to gather evidence against him, that the applicant relied on the privilege against self‑incrimination and the derivative use immunity and acknowledged that Mr Couper was being investigated in relation to possible criminal contraventions of the Corporations Act. He conceded that the examination touched on matters that might be the subject of criminal proceedings.
Mr Truong says that, even if these matters are accepted, there is no prejudice to Mr Couper which would outweigh the private and public interest considerations in favour of an order under s 597(13) being made. First, Mr Couper can point to no actual harm or prejudice. Secondly, Mr Couper had the ability to call on the Court to disallow questions where the examination was being conducted for an improper purpose or was an abuse of process. Thirdly, the terms of the Act are clear; the common law privilege concerning self‑incrimination has been abrogated. Once there has been such abrogation all immunity is removed. In this regard, reference was made to the decision of Warren CJ in Re application under the Major Crime (Investigative Powers) Act 2004.[10] In that case, the Chief Justice considering the question of abrogation of the privilege against self-incrimination, observed:
Despite the importance of the privilege at common law, it can be abrogated by statute and the right is not protected by the Constitution. Before the abrogation to have the appropriate effect, it must clearly represent the unmistakeable intention of Parliament, either by express words, or necessary implication. Once the privilege has been abrogated, all immunity is removed.
[10][2009] VSC 381 at [43].
Mr Truong also made reference to the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic), the application of which would lead to the exclusion of evidence at trial in certain circumstances. The position under immediate consideration here concerns the application of Commonwealth legislation. The application of the Charter is not a matter for me to consider in this application and should be left to the court considering any criminal charges which may be made against Mr Couper.
Mr Truong then moved on to a consideration of the terms of s 597(13). He submitted that the terms of that section were such that the Court may order that an examination “be recorded in writing” but it can determine that the examinee not sign that written record. That is to say, the terms of the sub-section are such that the written record referred to (“that written record”) is a reference to the record in writing of “the questions put and the answers given by [the examinee] at an examination”. The Court, in exercising a separate discretion, is required to decide whether the examinee should sign that written record. Section 597(14) provides for the use of any written record of an examination “so signed by a person” or any authenticated transcript being used in evidence in any legal proceedings. Thus, the written record referred to in s 597(14A) can either be a signed or unsigned record in writing of the questions put and the answers given by the examinee. Section 597(14) clearly contemplates the existence of a written record which is unsigned, but that unsigned written record cannot be used in evidence in any legal proceedings. Mr Truong contended that an unsigned written record is open for inspection. He says that if Parliament had intended that access be limited to signed written records, it would have limited rights to inspection as it does in sub-s(14) to a written record “so signed by a person”. He submitted that the object of those provisions was to enable access to written records and transcripts for the purpose of furthering the private and public objectives of the examination procedures.
As such, Mr Truong submitted that once the Court has ordered that an examination “be recorded in writing” for the purposes of s 597(13), that record is a “written record” for the purposes of s597(14A) and may be publicly inspected. ASIC supports the making of such an order.
Finally, Mr Truong says that if orders are made under s 597(13) sufficient to constitute a written record, signed or unsigned, for the purposes of s597(14A), then the Court cannot limit public access to the record under s597(14A), which provides for a right of inspection. It is submitted that a right to inspect given by s 597(14A) in relation to a written record ordered to be made under sub-s(13) may not be curtailed by a direction under s 596F(1)(e). In Strarch (No. 1)[11] Barrett J stated at [25]:
In my opinion, the provisions in question must, despite what is said in the Emmanuel Investments case, be approached on the basis that s 597(14A) is a legislative directive that every person who wishes it is to have the ability to inspect any written record of question and answers made pursuant to s 597(13). A fee must be paid where the person desiring to inspect is not within s 597(14A)(a); otherwise, inspection is free of charge. There is also, in my view, a manifested legislative intention that the ability to inspect is not to be curtailed through an order under s 596F(1)(e), even though such an order may preclude access to the whole or any part of the remainder of the “records of the examination” in the widest sense referred to by Santow J; and this is so whether or not the examination is conducted in private or in public.
[11][2005] NSWSC 583.
Mr Truong contends that if the Court declines to make orders for the creation of a written record under s 597(13), the Court may still exercise its powers under s 596F(1)(e) to make directions about access to any other records of the examination, including a transcript authenticated within the meaning of sub‑s(14). Such an order would allow access to ASIC or any other person to the transcript of the examination as the transcript forms part of the “records of the examination”.
The plaintiffs’ submissions
Mr Bick QC contended that it is not necessary that an order under s 597(13) of the Act be made at the commencement of an examination and could be made at any time during the examination. He noted that Mr Couper was the fourth or fifth examinee and that Ms Wegener, who was the second examinee, was also represented by Mills Oakley Lawyers. When Ms Wegener was examined she was, as I have observed above, represented by Mr Clarke of Counsel who had up to that point in time represented Mr Couper and Mr Di Donato in the earlier application. In addition, he observed that a representative of Mills Oakley Lawyers had been in court throughout the examinations and would have observed that orders under s 597(13) were made at the conclusion of the examinations save that of Mr Di Donato.
Mr Bick stated that when an order was sought at the end of Mr Couper’s examination it could not have come as a surprise that such an order would be sought.
Mr Bick emphasised that the passage of Strarch (No. 1) which is extracted in paragraph 22 above where Barrett J observed that it was desirable, not a mandatory or an immutable rule, that the judicial officer presiding at an examination should invite submissions as to appropriate orders in regard to the application of that sub‑section at the outset of the examination. Mr Bick contended that what Barrett J meant to convey in that statement was that, if it was likely that there would be any argument or dispute concerning the issue of signing the record of the examination, then it was desirable to raise the issue at the outset, although it was not mandatory. He noted that there was no prescription in the Act as to when the application for an order under that sub‑section should be made.
Mr Bick stated that it would have been obvious to all present at the examination that a transcript was being made of all of the examinations as is required by Practice Note No. 3 of 2002 which provides that:
In the interests of the efficient administration of justice the Court has determined that unless the Court otherwise orders, there shall be transcript of the conduct of:
· all directions, interlocutory hearings
· the trial of all civil proceedings, and the cost of such transcript and incidental expenses shall be borne by the parties.
Mr Bick contended that the transcripts of the examination are transformed into a written record under that practice direction. It was Mr Couper and his representatives who were best placed to know whether there would be a dispute concerning any application being made that his examination be recorded in writing and that he would be required to sign the transcript of the examination. Mr Bick observed that it was Mr Couper who attended the examinations before ASIC and who would have had an awareness of the alleged potential for orders under s 597(13) to cause him prejudice. Mr Bick was critical of Mr Couper and his representatives in their decision to wait until the end of the examination and only then contend that it was not appropriate that Mr Couper sign the transcript.
Mr Bick then moved to a consideration of the legislative scheme concerning examinations. He observed that s 597(4) provided that examinations be held in public so that information which came out in the examination would be public unless there were special circumstances. In this instance, there was no application by Mr Couper that the examination be held in private. He contended that, as a practical matter, such an application would have to be made prior to the commencement of the examination and s 597(4) provides that there is power to make such an order if special circumstances are established. Mr Bick contended that those advising Mr Couper must have come to the view that there were no such special circumstances to warrant an order being made that the examination be conducted in private. He observed that Bill Express was a public company, that the deficiency in the liquidation was in the order of a quarter of a billion dollars and that there was a high level of public interest in the liquidation and the events surrounding it.
Mr Bick observed that s 597 (12A) provides an examinee with the protection, if it is invoked, that the evidence given under objection cannot be used against him in criminal proceedings or in civil proceedings for the imposition of a penalty. That is the only protection Parliament has left to the examinee.
Mr Bick submitted that the terms of s 597(12) are clear and the privilege against self‑incrimination has been completely abrogated. The terms of s 597(13) provide for two discretions, the first being that the Court may order that the questions put to a person and the answers given be recorded in writing and the second, that the Court may require the examinee to sign the transcript or written record. This proceeding, i.e. the examinations, including the examination of Mr Couper, was recorded in writing in compliance with the requirements of the Practice Note No. 3 of 2002. Mr Bick stated that even if this was not the proper characterisation as to what occurred, as a matter of fact the examinations were being recorded in writing from their commencement. The application in this instance, he says, really involves a consideration as to whether the Court should exercise its discretion to require Mr Couper to sign that written record.
Mr Bick contended on behalf of the plaintiffs that the ability to use the signed or authenticated transcript is of considerable importance to liquidators, ASIC and anyone else with standing to conduct an examination who wished to subsequently issue proceedings. Parliament has provided that liquidators are entitled to the advantage of the use of such material in subsequent legal proceedings in certain appropriate legal circumstances. Mr Bick says that this is because the record so signed or authenticated can be used in legal proceedings against the person, but not in criminal proceedings if the s 597(12A) privilege has been invoked.
Mr Bick contended that a written record which is signed makes it very difficult for the examinee to resile from that which is put against him in subsequent proceedings. Parliament has provided that a signed record of an examinee’s testimony is an advantage contemplated by the Act that liquidators are entitled to, in certain appropriate circumstances.
He stated that the discretion in respect to the signing of the transcript is a discretion which is required to be exercised judicially. The exercise of this discretion involves the consideration of the public interest, which was not disputed by Mr Couper in this instance, against the private interests of Mr Couper. Mr Bick contended that there was no evidence of prejudice arising from an order that Mr Couper sign the transcript to his private interests.
As to the assessment of the public interest, Mr Bick contended that while a transcript authenticated under r 11.7 of the Rules can also be used as evidence in future legal proceedings pursuant to s 597(13), such a transcript is not able to be inspected. In this regard he did not adopt the submissions of Mr Truong that the written record referred to in s 597(14A) did not necessarily have to be signed. As will be seen below, I agree with Mr Truong’s submissions in this regard and once I make an order under s 597(13) that the questions put to Mr Couper and the answers given by him at his examination be recorded in writing, a written record is created which can be inspected under s 597(14A). Such right of inspection of the written record should not be the subject of directions under s 596F(1)(f) on an application of Barrett J’s reasoning in Strarch (No. 1) referred to above.
Mr Bick stated that the public interest in making a transcript of the examination available for inspection is that it helps inform the public of how corporations have been managed and achieves the deterrent effect of a public examination.[12] Mr Bick referred to the decision of Windeyer J in Rees v Kratzmann[13] where it was observed:
The honest conduct of the affairs of companies is a matter of great public concern today. If the legislature thinks that in this field the public interest overcomes some of the common law’s traditional consideration for the individual, the effect must be given to the statute which embodies this policy.
[12]Evans and ors v Wainter Pty Ltd (2005) 145 FCR 176 at 196.
[13](1965) 114 CLR 63 at 80.
Mr Bick stated that the research which was conducted on behalf of the plaintiffs on this issue revealed that there have been no reported cases which have considered whether an order should be made under s 597(13) of the Act. To the extent that there has been consideration of that provision, it has concerned technical issues such as whether or not an order was properly made under the section in the absence of an explicit order for the making of a written transcript or whether it is unjust to require an examinee to sign a written transcript without requiring the plaintiff to provide the examinees with the documents referred to in the examination.[14]
[14]Re New Tel Limited (in liq) (2008) 167 FCR 435.
Mr Bick contended that the case law suggested that the need for publicity concerning the affairs of failed companies at corporations examinations should not be outweighed unless there are “exceptional circumstances”. In Friedrich v Herald and Weekly Times Ltd[15], the Court stated[16]:
…save in the most exceptional circumstances, no general order for non‑publication, either in respect of all persons or any specific person to be examined, should be made where an order for public examination has been made …
[15]Friedrich v Herald & Weekly Times [1990] VR 995.
[16]Ibid.at 1004.
Mr Bick sought an order which affirmed that a record of Mr Couper’s examination has been transcribed in accordance with s 597(13) of the Act and that further, Mr Couper should sign the transcript pursuant to s 597(13) of the Act.
Mr Couper’s submissions in reply
In his submissions in reply, Mr Moore, junior counsel for Mr Couper, observed that the onus of persuading the Court of the matters mentioned in sub-s(13) was on the plaintiffs, not Mr Couper.
Mr Moore stated that it is erroneous to suggest that Victorian legislation, i.e. the Charter, affects the interpretation of Commonwealth legislation. As I have observed above, my view is that the application of the Charter is properly a matter for the court considering any criminal charges against Mr Couper.
As to the submission of Mr Truong which seeks a distinction to draw between a written record and a written record that is signed, Mr Moore pointed to the statement of Barrett J in Strarch (No. 2) at [14]. Barrett J stated:
The applicants say that, on these facts, the Court must find that the transcript of Mr Key’s examination, as signed by him and retained on the Court file, is, in terms off s 597(14A), a ‘written record made under sub-s(13)’. For the document to have that character, it must be found, having regard to the terms of s 597(13), that the Court ordered the making of the written record of questions and the answers represented by the transcript and that the Court required Mr Key to sign it.
Thus, Mr Moore contends that Barrett J is of the opinion that in order to be a written record capable of inspection under s 597(14A), it must be the subject of orders first, that the examination be recorded in writing and secondly that the examinee sign the written transcript.
Mr Moore stated that there was no requirement under the terms of s 597(13) that special circumstances be shown by the examinee before the Court would refuse to make an order under sub‑s (13) that the examinee sign the transcript. While the special circumstances test was prescribed in relation to the issue of whether the examination should be open to the public, such a test was not provided for in s 597(13).
Mr Moore stated that the position being taken on behalf of Mr Couper would not deprive the plaintiffs of an important advantage available to them, that is the use of the transcript in subsequent legal proceedings. This is because a transcript authenticated by the relevant transcription officer can be used in such legal proceedings. Mr Couper did not oppose the authentication of the transcript which would then be available for use by the plaintiffs in legal proceedings. Mr Moore said that the difference between the signed written record and such a transcript is that the transcript will not be available to the world at large, including investigators who wish to bring criminal charges against Mr Couper. Mr Moore said that it would be unfair for Mr Couper to be examined, required to give answers and then ordered to sign the transcript and for that transcript to constitute the written record. That document could then be given to a person not conducting the examination, i.e. ASIC, who could then use it to bring criminal charges against Mr Couper.
Mr Moore said that to the extent that there is a public interest in the conduct of the examination that has been served, in that Mr Couper has been exposed in public to suggestions that he has committed wrongdoing.
Mr Moore sought to address the criticism made by Mr Bick of Mills Oakley’s presence during the examination of the other examinees, including Ms Wegener, and the objection to Mr Couper not signing the transcript only being taken when the application was made at the conclusion of the examination for the order. Mr Moore said that nothing was required of Mr Couper until the application for an order was made and, secondly, the fact that Mills Oakley acted for other examinees is irrelevant as to the issue of statutory construction as to whether an order should be that a written record be produced and that Mr Couper be required to sign it.
Mr Moore says that Mr Couper has a practical reason as to why he should not want to assist investigators; he is entitled to resist a situation whereby he is forced to give answers and then be asked to sign a written record which will become available to investigating authorities. Mr Moore says that that reason is a proper one which should be relevant to be taken into account in exercising the discretion as to whether an order should be made under s 597(13).
He submitted that if an order was not made under s 597(13) that there be a written record, that an order should not be made under s 596(1)(e) giving ASIC access to the records of the examination, including the transcript. If, he says, the Court is persuaded not to make an order to sign the transcript, it should not enable ASIC to obtain access by that other means to a transcript of the examination.
Should an order be made under s 597(13) that the questions put and the answers given at the examination of Mr Couper be recorded in writing?
In my view, s 597(13) requires the exercise of two distinct discretions, the first whether or not an order should be made that the questions put and the answers given be recorded in writing and, secondly, whether or not the examinee should be required to sign that written record.
I consider that the expression “that written record” where it appears in s 597(13) is a reference to a record in writing of the questions put to a person and the answers given by him or her. That written record may be signed or unsigned by the examinee, depending upon whether an order is made under the second discretionary limb of s 597(13).
Section 597(14) refers to both “a written record of the examination so signed by a person” – a reference to a written record produced pursuant to an order under sub‑s(13) and “any transcript of an examination of a person that is authenticated as provided by the Rules”, a reference to r 11.7 of the Supreme Court (Corporations) Rules which provides for authentication of a transcript of an examination. Under the terms of s 597(14) only a written record which is also signed by the examinee may be used in evidence in any legal proceedings against the examinee. If it is desired to use the examinee’s testimony in that way and no order is made that the examinee sign the written record, resort is required to the authentication process in r 11.9. It is not in my view necessary that the testimony given in an examination, which is ordered to be the subject of a written record, be signed by the examinee in order to be a written record within the meaning of s 597.
As such, I respectfully disagree with the statement of Barrett J in Strarch (No. 1) at [28] of the judgment and extracted at paragraph 22 above where he speaks of there being different rules as to rights of inspection applicable to different forms of written records of Part 5.9 examinations[17]. As I have said, if the Court makes an order that the questions put to a person and the answers given by him or her in an examination be recorded in writing, that document becomes the “written record”. The heading to s 597(13) describes the sub-section as pertaining to “[Signed written record]”. Section 597(14A) is headed “[Inspection of written record]” and provides for inspection of a written record made under sub‑s(13) which is indicative of the construction that a written record may either be signed or unsigned. In my view, a signed or unsigned written record produced pursuant to an order made under s 597(13) is open for inspection by any member of the public and any investigative or prosecuting authority, provided they pay the required fee.
[17] See paragraph [22] above.
An ordinary transcript of a liquidator’s examination which is not the subject of an order under s 597(13) that it be recorded in writing is not a written record properly so called. In this regard, I disagree with Mr Bick’s submissions insofar as he contends that the production by the transcript agency of a transcript of an examination equates to the creation of the written record. An order in this regard under s 597 (13) is still required.
As such, I respectfully disagree with the statement of Barrett J at [14] of Strarch (No. 2) extracted at paragraph 65 above where he states that for a document to have the character of a written record it must be found, having regard to the terms of s 597(13), that the Court ordered both the making of the written record of questions and answers represented by the transcript and that the Court required the examinee to sign it.
My view that a written record is created whether or not it is signed by the examinee is confirmed by the following passage of the Full Court of the Supreme Court of Western Australia in Douglas Brown v Furzer[18] where Malcolm CJ stated:
In my opinion, the discretion under s 541 was a broader one than that left in the new provisions, which are clearly designed to make the material derived in the course of an examination more readily available to other persons, including creditors of the company. Among other things, any other member of the public may have access to the record or transcript of an examination on payment of a prescribed fee under subs (14A).
Any examination conducted of the respondent would be recorded on tape and transcribed. The transcript would constitute a written record of the proceedings. It is a matter for discretion whether a direction should be given requiring the respondent to sign the written record. Such a direction is unnecessary in this jurisdiction as, if the prescribed procedure for authentication of the transcript is followed, it will be admissible in evidence under s 597(14) in any event (emphasis added).
[18](1994) 13 ACSR 184 at 194.
The only reservation that I would have with this is that the mere transcription of the testimony does not create the written record, rather an order is required under s 597(13) in that regard.
I agree with the submissions of Mr Bick and Mr Truong that there is no requirement that orders under s 597(13) be made prior to the commencement of the examination. Barrett J in Strarch (No. 2) at [28] states that it is desirable that such matter be dealt with at the outset of the examination. He does not say that this is a requirement of the Corporations Act. The appearance of the words “to be” in s 597(13) do not in my view require that such orders be made at the outset. Transcripts in court are routinely taped and later transcribed, i.e. recorded in writing. In my view, the exercise of the discretion involved in deciding whether or not formal orders for production of a written record should be made under s 597(13) can just as appropriately be considered at the conclusion of the examination as they can prior to the commencement without visiting any injustice or prejudice upon those involved in the examination. This is in my view illustrated by the fact that Mr Couper’s legal representatives were able to make comprehensive written and oral submissions after Mr Couper had finished his testimony. Mr Couper suffered no disadvantage by such argument being made at that point.
There is some force to Mr Bick’s submission that if Mr Couper or his legal representatives had misgivings about such orders being made, they were the ones best in a position to know the situation in that regard and raise the issue at the outset of the examination.
I consider that it is appropriate to make an order under the first limb of s 597(13) that the questions put to Mr Couper and the answers given by him at his examination be recorded in writing. Many people have an interest in knowing of the circumstances which brought about the failure of Bill Express and its related entities. The examinations which were all conducted in public were well attended on each of the 28 days that the examination has proceeded so far. I can see no good reason why, given the importance of this insolvency administration, a written record should not be ordered to be produced in respect to Mr Couper’s examination.
Should orders be made under s 597(13) that Mr Couper sign the written record?
The mischief which is said to arise if an order is made that Mr Couper sign the written record of his examination is that it will become available to ASIC and other authorities investigating allegations of criminal conduct by him. It is said that this would expose him to the real risk that those authorities would use the written record to gather evidence against him, that is, make derivative use of it by embarking on paths of inquiry.
As I have said above, I consider that once I make an order under s 597(13) that the questions and answers given at Mr Couper’s examination be recorded in writing, a written record is created which is available for inspection under s 597(14A). Even if my view in that regard is not correct, I do not consider that any prejudice which would be suffered by Mr Couper if he was required to sign the transcript outweighs the public interest considerations which are required to be taken into account. As Mr Dean observed in his submissions, representatives of ASIC were present throughout the examination, no doubt took notes of his testimony and could have embarked on paths of enquiry already with such information. Clearly, there has been abrogation of the privilege against self‑incrimination. Unlike the legislative precursor to s 597(14A), s 597(12) of the Corporations Law, which provisions were intended to attempt to preserve an examinee’s derivative use immunity, s 597(12A) does not.
Mr Dean says that there is still a residual protection against the derivative use of Mr Couper’s testimony because of the Court’s discretion as to whether or not to order Mr Couper to sign a written record. For the reasons that I have expressed above, I consider that the written record comes into existence when I make an order that the testimony of the examination be recorded in writing; it becomes available under s 597(14A) once such an order is made. The potential for derivative use of the testimony will have already arisen whether or not Mr Couper signs the transcript or whether or not I make an order that a written record be produced because the examination was conducted in public.
I agree with Mr Bick’s submission that a written record which is signed by Mr Couper makes it very difficult for him to resile from his testimony if it is put to him in subsequent civil proceedings. Section 597(13) contemplates a scenario where an examinee may be required to sign the written record. Very often such an examinee will be in the same situation as Mr Couper in that allegations of criminal conduct are being made against him. The Act provides Mr Couper with the protection of s 597(12A) so that the evidence given under objection cannot be used against him in criminal proceedings but, because of the abrogation of privilege against self‑incrimination, that is the only protection Parliament has left to the examinee.
As the Full Court of the Supreme Court of Western Australia observed in Douglas- Brown v Furzer[19], the provisions of the legislation are designed to facilitate the prosecution of civil and criminal proceedings, whether contemplated or already commenced. In my view, extraordinary factors would need to be demonstrated by Mr Couper before I would impede ASIC, other government authorities and the public generally from having the benefit of a written record which is signed by Mr Couper.
[19](1994) 11 WALR 400.
The scheme of Part 5.9 of the Division 1 of the Act affords considerable advantages to liquidators and other eligible applicants which have the effect of imposing on examinees onerous obligations and which deprive them of rights that, absent the terms of the legislation, they would have. The following passage of the judgment of Mason CJ in Hamilton v Oades[20], in considering the operation of s 541 of the Companies Code (which provision, incidentally, like s597(12A), did not have terms which sought to preserve derivative use privilege) collects the relevant principles applicable to the consideration of this issue in examinations[21]:
[20](1988-1989) 166 CLR 486.
[21]Ibid at 494-497
It is plain that an examination under s 541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But it is well established that Parliament is able to “interfere” with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked: see Hammond v Commonwealth (1982) 152 CLR 188 ; 42 ALR 327, Sorby. There has been a long history of legislation governing examinations in bankruptcy and under the Companies Acts which abrogate or qualify the right of the person examined to refuse to answer questions on the ground that the answers may incriminate him: see Rees v Kratzmann (1965) 114 CLR 63, especially at 80. In that case Windeyer J observed (at 80):
The honest conduct of the affairs of companies is a matter of great public concern today. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.
This passage was cited with approval by Walsh J (with whom Barwick CJ, Windeyer and Owen JJ agreed) in Mortimer v Brown (1970) 122 CLR 493 at 499.
The privilege against self-incrimination can only be abrogated by the manifestation of a clear legislative intention. The intention may nonetheless be demonstrated by reference to express words or necessary implication: Sorby, supra, CLR at 309 ; ALR 258; Police Service Board v Morris (1985) 156 CLR 397 ; 58 ALR 1. But the privilege is not lightly abrogated, and the phrase “necessary implication” imports a high degree of certainty as to legislative intention.
Mortimer v Brown is a striking illustration of statutory abrogation of the privilege where the intention to abrogate was ascertained by necessary implication. Although Mortimer v Brown was decided before Sorby established that the privilege is designed to protect a witness from indirect use of answers which may tend to incriminate, this circumstance in no way affects the authority of the decision. The relevant provision was s 250 of the Companies Act 1961 (Qld). The applicant was required to attend before the court pursuant to s 250(1) for examination in relation to the conduct of a company's business and as to his conduct and dealings as a director or officer of the company. The section did not expressly abrogate the privilege against self-incrimination. Sub-sections (3) and (4) provided:
(3) The Court may put or allow to be put such questions to the person examined as the Court thinks fit.
(4) The person examined shall be examined on oath and shall answer all such questions as the Court puts or allows to be put to him.
Sub-section (7)(c) provided that notes of the examination might thereafter be used in evidence in any legal proceedings against the person examined. The court unanimously rejected an argument that, absent abrogation of the privilege in express terms, the provision should be construed as failing to disclose an intention to deny the privilege to a person being examined under the section. The court concluded that the purpose of the provision and the public interest it was intended to serve did not permit the section to be read down in the manner contended by the applicant. The provision contained, in the form of a judicial discretion, an adequate safeguard against any infringement of individual rights and any injustice or oppression which might be caused by the provision.
Compared with the statutory provision considered in Mortimer v Brown s 541 is significant in three respects. First, it expressly abrogates the privilege. Secondly, it specifically provides that answers which may otherwise have been privileged are not admissible in criminal proceedings other than proceedings under the section or other proceedings in respect of the falsity of the answer. Finally, it explicitly empowers the court to give directions concerning the examination. The second and third matters just mentioned are designed to reduce any element of unfairness to the witness that may arise as a result of abrogation of the privilege: see Sorby (CLR at 295, ALR at 246).
Of course the section gives no protection to the witness against the use in criminal proceedings of derivative evidence, that is, evidence which is obtained from other sources in consequence of answers given by the witness in his examination. It would be difficult for Parliament to provide for specific protection against derivative use of such answers given by a witness. Immunity from derivative use tends to be ineffective by reason of the problem of proving that other evidence is derivative: Sorby (CLR at 312, ALR at260). But in any case, by enacting s 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out his own mouth — the principal matter to which the privilege is directed. Thus the legislative resolution of the competition between public and private interest is to provide for a compulsory examination and to give specific protection in relation to the principal matter covered by the privilege but not otherwise, except in so far as a judge, in the exercise of a wide statutory discretion, may see fit in the particular circumstances of a case to give directions as to the matters to be inquired into.
In exercising this discretion the judge is confronted with a difficult task. He has to take account of the competing public and private interests. There are the two important public purposes that the examination is designed to serve. One is to enable the liquidator to gather information which will assist him in the winding-up; that involves protecting the interests of creditors. The other is to enable evidence and information to be obtained to support the bringing of criminal charges in connection with the company's affairs: Mortimer v Brown, at 496, 499. Sub-section (2)(a) and (b) emphasises the high public importance of these purposes. The examination is designed to elicit, among other things, evidence and information relating to the question whether the witness “has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to” the corporation.
On the other hand, in exercising his discretion under s 541(5), the judge is bound to take into account the interests of the witness for, as Kitto J pointed out in Mortimer v Brown, at 496, “cases are bound to arise in which immense harm may be done … to the person being examined and … to other individuals or to the community, by the allowing or disallowing of questions”. In the light of the statutory provisions and the public purposes which I have outlined it would be going too far altogether to view the existence of the discretion as requiring ordinarily the giving of directions which will protect the witness from the consequences of abrogation of the privilege in so far as they include the derivative use of the answers of the witness. To give such directions as a matter of course would be to frustrate the statutory purpose. (emphasis added)
I will order that Mr Couper sign the written record of his examination.
Mr Couper also sought a direction under s 596F(1)(e) in relation to access about records of his examination including transcript authenticated within the meaning of sub‑s(14) of s 597. For the reasons given above in respect of preparation of a written record and my order that Mr Couper sign it, it is not necessary for me to consider that issue, save that I would decline to make such a direction for the same reasons that I have given above in relation to orders for the preparation of the written record and for Mr Couper’s signature to it. I agree with Barrett J‘s view in Stratch (No. 1) that the scheme of the legislation is such that the ability to inspect is not to be curtailed through an order under s 596F(1)(e).
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