ROBERT MICHAEL KIRMAN as liquidator of ACN 142 745 337 PTY LTD (IN LIQUIDATION)

[2021] WASC 372

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ROBERT MICHAEL KIRMAN as liquidator of ACN 142 745 337 PTY LTD (IN LIQUIDATION) [2021] WASC 372

CORAM:   MASTER SANDERSON

HEARD:   21 OCTOBER 2021

DELIVERED          :   27 OCTOBER 2021

PUBLISHED           :   27 OCTOBER 2021

FILE NO/S:   COR 111 of 2018

BETWEEN:   ROBERT MICHAEL KIRMAN as liquidator of ACN 142 745 337 PTY LTD (IN LIQUIDATION)

Plaintiff

Catchwords:

Corporations law - Application to re-open examination to allow examinee's counsel to further re-examine

Legislation:

Corporations Act 2001 (Cth)

Result:

Application dismissed

Category:    A

Representation:

Counsel:

Plaintiff	:	C M Guy
Examinee	:	A Rumsley

Solicitors:

Plaintiff	:	HWL Ebsworth Lawyers (Perth)
Examinee	:	Alan Rumsley Commercial Disputes Lawyer

MASTER SANDERSON:

1. An examination summons was issued directed to Allen Bruce Caratti on 16 February 2021. The summons was issued pursuant to s 596A of the Corporations Act 2001 (Cth). The examination took place on 16 and 17 March 2021. It was conducted pursuant to s 597. Mr Caratti was represented at the hearing by counsel. This representation is permitted by s 597(16). On 31 March 2021 Registrar Davies made relevantly the following order.

   Pursuant to s 597(13) of the Corporations Act 2011 (Cth), Allen Bruce Caratti is to authenticate the transcript of the examination within 14 days of these orders or of the transcript being provided to him (whichever is the latter) unless Mr Caratti makes an application to the Court for orders to the contrary.

2. On 20 September 2021, Registrar Fatharly extended the time within which Mr Caratti was to authenticate the unamended transcripts to 21 September 2021.  In fact, the authenticated transcript was provided to the court on 5 October 2021.  No issue is taken by the plaintiff with the breach of the orders made by Registrars' Davies and Fatharly.

3. Mr Caratti now moves for the following order:

   The examination of Allen Bruce Caratti (Mr Caratti), pursuant to a summons for examination dated 16 February 2021 (the Examination), be relisted pursuant to s 596 (F)(1)(b) of the Corporations Act2001 so that Mr Caratti's solicitor may put questions to him for the purpose of enabling him to explain or qualify any answers given by him in the examination pursuant to s 597(16) the Corporations Act 2001.

4. The plaintiffs have indicated they neither consent nor oppose the orders sought by Mr Caratti.  They have however raised the question whether there is jurisdiction to make such orders.  It is a short point but one of general application.  In my view, there is no jurisdiction in the court to make the orders sought.

5. An order for a mandatory examination is made under s 596A. This section is found in Pt 5.9 Div 1 the Corporations Act 2001. Section 596A deals with mandatory examinations and s 596B deals with discretionary examinations. Section 596C deals with the affidavit which must be filed if an application is made under s 596B. No affidavit is required if the application is made under s 596A, although an affidavit is frequently lodged even if its sole purpose is to identify a proposed examinee as a person to who s 596A applies. Pursuant to s 596C(2) an affidavit filed in relation to a s 596B application is not to be available for inspection without leave of the court.

6. Section 596D deals with the content of a summons and s 596E requires notice of the examination to be given to certain persons.  Section 596F allows the court to give directions about the examination.  It reads as follows:

   596FCourt may give directions about examination

   (1)Subject to section 597, the Court may at any time give one or more of the following:

   (a)a direction about the matters to be inquired into at an examination;

   (b)a direction about the procedure to be followed at an examination;

   (c)a direction about who may be present at an examination while it is being held in private;

   (d)a direction that a person be excluded from an examination, even while it is being held in public;

   (e) a direction about access to records of the examination;

   (f)a direction prohibiting publication or communication of information about the examination (including questions asked, and answers given, at the examination);

   (g)a direction that a document that relates to the examination and was created at the examination be destroyed.

   (2)The Court may give a direction under paragraph (1)(e), (f) or (g) in relation to all or part of an examination even if the examination, or that part, was held in public.

   (3)A person must not contravene a direction under subsection (1).

7. In this jurisdiction applications for leave to issue an examination summons are listed in Masters Chambers and are dealt with ex parte.  Generally speaking, directions as to the way in which the examination is to be conducted is not given.  The examination is conducted before a registrar of this court.  It is the registrar who makes directions under s 596F.  Certain directions were given in this case and there is no challenge to those directions. 

8. There is no power under s 596F to make the orders sought by Mr Caratti.  The application refers to s 596F(1)(b), that is the only subsection which could be relevant.  But that subsection speaks about the procedure to be followed 'at an examination'.  It does not permit the examination to be reinstituted on the motion of an examinee.  The language of the section simply does not permit that to occur.

9. Neither is s 597(16) of any assistance. That section reads as follows:

   (16)A person ordered to attend before the Court or another court for examination under this Division may, at his or her own expense, employ a solicitor, or a solicitor and counsel, and the solicitor or counsel, as the case may be, may put to the person such questions as the Court, or the other court, as the case may be, considers just for the purpose of enabling the person to explain or qualify any answers or evidence given by the person.

1. That section is also concerned with the examination itself.  It does not by its term or by implication allow an examination to be reconvened so as to allow questions to be put to an examiner by his counsel.  What the section permits is effectively re-examination by counsel before the examination concludes.  But once it concludes, that is the end of the matter and there is no right to reconvene the examination.

2. Mr Caratti's application will be dismissed.  There should be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MM

Court Officer

27 OCTOBER 2021