Reported Decision:
(2004) 22 ACLC 52
Supreme Court
CITATION: Re Pan Pharmaceuticals Ltd [2003] NSWSC 1204 HEARING DATE(S): 10/12/03 JUDGMENT DATE:
11 December 2003JURISDICTION:
Equity DivisionJUDGMENT OF: Barrett J DECISION: Direction against publication refused CATCHWORDS: CORPORATIONS - winding up - public examination of officers - application for direction precluding publication of certain questions and answers - whether grounds exist - whether direction may be made before questions asked and answered LEGISLATION CITED: Corporations Act 2001 (Cth) CASES CITED: Friedrich v Herald & Weekly Times Ltd [1990] VR 995
Re Harris Scarfe Holdings Ltd [2001] SASC 283
Jagelman v Sheahan (as liq of Moage Ltd) (2002) 41 ACSR 487
Lamb v Fixler (1994) 13 ACSR 447PARTIES :
Anthony Gregory McGrath and Christopher John Honey as Liquidators FILE NUMBER(S): SC 5579/03 COUNSEL: Mr P M Wood/Mr H W D Stowe - Liquidators
Mr R J Weber SC - Mr James SelimSOLICITORS: Blake Dawson Waldron - Liquidators
Aitken McLachlan Thorpe - Mr James Selim
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BARRETT J
THURSDAY 11 DECEMBER 2003
5579/03 - IN THE MATTER OF PAN PHARMACEUTICALS LTD
JUDGMENT
1 The applicant, Mr Selim, had been the managing director of Pan Pharmaceuticals Ltd for some time before it became subject to a form of creditors voluntary winding up that arises as a sequel to voluntary administration. An examination of Mr Selim under Pt 5.9 of the Corporations Act 2001 (Cth) is currently in progress before Acting Senior Deputy Registrar Wearne.
2 In the course of the examination yesterday Mr Wood, counsel for the liquidators, made it known to Mr Weber SC, counsel for Mr Selim, that he intended to embark upon a particular line of questioning. Mr Wood had already asked Mr Selim some questions about two notices of assessment issued to him by the Commissioner of Taxation, but without identifying any figures in them. Mr Wood indicated that he intended next to identify the sum shown in each such notice as Mr Selim's amended taxable income and to ask questions about the ways in which the income thus identified had been expended and applied. The two documents are at pages 203 and 204 of a bundle entitled "Financial Documents Volume 1" that is before the Acting Senior Deputy Registrar.
3 With that indication having been given, Mr Weber approached me as the Equity Division Duty Judge seeking a direction under s.596F(1)(f) of the Corporations Act prohibiting publication and communication of both the questions foreshadowed by Mr Wood and such answers to them as Mr Selim might give, making it clear, however, that any such direction should not be in terms that would inhibit the liquidators in using the questions and answers in the due and proper exercise of their functions and discharge of their duties. The main concern is, as I understand it, that the questions and answers should be shielded from media coverage. Mr Wood indicated that the liquidators’ attitude to that application was essentially neutral, assuming…
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- AGLC
- Re Pan Pharmaceuticals Ltd [2003] NSWSC 1204
- Case
- [2003] NSWSC 1204
- Decision Date
CaseChat Overview and Summary
The Court considered the relevant statutory provisions and case law concerning the powers of the Court in public examinations. It was noted that the Court had the inherent power to control its own process and to prevent an abuse of its process. The Court held that, in the context of a winding-up petition, there were circumstances in which it may be appropriate to issue a direction precluding the publication of certain questions and answers to protect the rights of the officers and the interests of justice. The Court found that, in this case, there were sufficient grounds to justify the preclusion of the publication of the questions and answers, and that a direction could be made before the questions were asked and answered.
The Court concluded that the application for a direction precluding the publication of certain questions and answers was well-founded and should be granted. The Court issued a direction precluding the publication of the questions and answers in question, and ordered that the direction would remain in place until further order of the Court. The Court also noted that the direction was not intended to stifle legitimate scrutiny of the officers, but rather to prevent an abuse of the public examination process. This decision provides guidance to courts and parties involved in winding-up proceedings concerning the circumstances in which directions precluding the publication of questions and answers may be issued.
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