Consideration
14 I accept that, as Freehills submitted, the mere fact that Freehills seeks to adduce expert opinion evidence from Mr Read against his wishes is not necessarily determinative of his application to set aside the subpoena. The rule set out in par [9] above must be borne in mind, but its application depends on the circumstances of the case. Further, I accept that, whilst it would have been better if Freehills had made contact with Mr Read earlier, the relevant delay is not of Freehills' own making. I accept that, as Mr Tuohey deposed, Freehills' solicitors only received Mr Read's report from the cross-claimants' solicitors on 12 October 2011. There is nothing to indicate that Freehills knew of the existence of the Insolvency Report at an earlier date.
15 Further, I accept that Mr Read's role as liquidator of WPC is relevant. As Dodds-Streeton J said in ASIC v Edge at 151, a liquidator's essential functions are to identify, take possession of and realise the company's assets, to investigate and determine the claims against the company, and to apply the assets to the satisfaction of those claims in accordance with the statutory scheme of priority. Thus, I accept, as counsel for Mr Read said, that these functions do not generally extend to the provision of expert opinion evidence in an action between third parties, such as the cross-claimants and the cross-respondents. At the same time, however in his or her capacity as liquidator, a liquidator must form an opinion about the solvency of the company in liquidation in order to discharge the liquidator's responsibilities as such. Whilst there is commonly a shortfall of assets with which to satisfy creditors' claims against a company wound up in insolvency, if there is a surplus, the liquidator must distribute it to members, as well as carry out the necessary steps for the company's dissolution. This entails forming a view on insolvency. Furthermore, in the case of WPC, it was a view formed more near in time to the collapse of company than now, upon the basis of the company's books and records as made available to the liquidator.
16 The liquidator is bound to form an opinion as to solvency or insolvency, having regard to the company's books and records, which must be delivered to the liquidator, and other relevant information. In this connection too, it must be borne in mind that the liquidator has extensive powers to obtain information and is entitled to the assistance of the company's officers. Thus, an opinion formed by the liquidator in the discharge of his functions as such as to the solvency or insolvency of the company ought to be well-based. I do not accept the submission made by counsel for Mr Read that Mr Read was in no different position from any other expert retained to give an opinion on the solvency of WPC. The fact that, in the case of WPC, Mr Read worked from an electronic version of the company's books and records obtained from ASIC does not, in my opinion, diminish the force of this consideration.
17 Whether or not an expert is considered relevantly connected with the facts and history of a matter will depend on all the circumstances of the case, and will frequently involve an assessment of the degree of connection. In the present case, Mr Read, as liquidator, formed a view as to the insolvency of WPC, which is set out in the Insolvency Report. The insolvency of WPC is a key issue in the litigation and will be an issue at the trial. Of course, there will be circumstances in which an expert accountant will have a greater or less relevant connection with the case at hand than Mr Read does here. Whilst Mr Read was not retained for this case, the nature of the evidence that Mr Read (see below) might give is more directly connected with the history of the matter in issue than the evidence of scientific research that might be given by a scientist, as discussed in Application of Forsyth. Mr Read's connection is, in this case, relevant and sufficient, in my view, to justify him being required by subpoena to be a witness at trial.
18 I accept that, as counsel for Freehills submitted, the evidence that Mr Read might give is likely to be significant to Freehills at the trial. The present case is, therefore, distinguishable from Application of Forsyth, where Clarke J thought is unlikely that the expert's deposition would be tendered at the trial: see Application of Forsyth at 336. As counsel for Freehills stated (and I accept), amongst other things, Freehills wishes to have Mr Read give evidence as to the financial documents that came into his possession as liquidator. The reasons for this need relate to the voluminous nature of the company records and the apparent difficulty encountered by the parties' respective witnesses in identifying the relevant documents for determining insolvency. This need puts Mr Read in a different position from an expert witness without relevant connection with the matter in issue. No-one apparently disputes the fact that the books and records of WPC are voluminous, and that this compounds the difficulties facing the expert accountants retained by the parties in identifying the relevant documents on which to base their opinions as to insolvency.
19 Further, Freehills wishes to rely on Mr Read's own expert opinion as to WPC's insolvency and how its insolvency should be assessed. As stated hereafter, this is, in the circumstances of this case, apparently an appropriate and reasonable approach. Given that Mr Read prepared the Insolvency Report apparently in conformity with this Court's requirements as to expert witnesses, this is not, in the circumstances of this case, as heavy a burden as it might be in other cases.
20 The significance of Mr Read's earlier work is highlighted by the fact that the cross-claimants' expert witness, Ms Tamara Lindsay, has herself referred to and discussed Mr Read's Insolvency Report. I accept that there may be a "large lacuna" in the evidence, to use counsel for Freehills' words, in the event that Mr Read is absent from the trial.
21 Furthermore, the task confronting an expert who sought to replicate the work undertaken by Mr Read is apparently a complex and difficult one. Mr Fitzgerald was said by counsel for Freehills to be having difficulty identifying the appropriate documents - a product of the voluminous record. Mr Fitzgerald has, it seems, identified different documents from Ms Lindsay as central to the issue of insolvency. As counsel for Freehills said, in this circumstance, the WPC's liquidator, Mr Read, should be of considerable practical assistance.
22 There are also other practical considerations to bear in mind. The cost of the Insolvency Report was, so Mr Read deposed, $400,000. The cost of replicating the exercise may well be greater, and is unlikely to be less. The time to repeat the task is also likely to be considerable and to adversely affect the trial date, which, subject to modifications, has been in place for some considerable time.
23 It seems to me clear that the interests of justice are best served in this case by declining to set aside the subpoena.
24 I appreciate that Mr Read may be inconvenienced by having to attend court as the subpoena requires him to do, and that his own reasonable desire to prepare himself for cross-examination may trespass on the time he would otherwise devote to his business and professional interests. For the reasons stated, I am persuaded, however, that, in the exercise of discretion, I should not set aside the subpoena issued to him. Further, it seems to me that the burden on Mr Read is lessened a little by Freehills' acknowledgement that he is unlikely to be required before 6 February 2012. It ought to be possible for Mr Read to lay aside a week in the interim to prepare himself for the trial.
25 The parties will have an opportunity to be heard on costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.