Reasons for the delay
68 Mr Hargreaves, Mr Whithear and Mr Meredith were served with the examination summonses and orders to produce directed to them on Friday, 3 June 2016. Thus, they should have moved to discharge the examination summonses and orders to produce by Monday, 6 June 2016, even though that was a public holiday in Western Australia.
69 Mr Evans was not served until Tuesday, 7 June 2016. Thus, he should have moved to discharge the examination summons and order to produce directed to him by Friday, 10 June 2016.
70 On 7 June 2016, the day on which he was served, Mr Evans conferred with officers of the SSO and ICWA about the work that might need to be done to respond to the examination summonses and orders to produce. He identified a number of issues for consideration including the scope of the task required to produce the documents; whether records held by the SSO or ICWA could be produced by the named officers in circumstances in which the examination summonses and orders to produce were not directed to the State of Western Australia or ICWA; and issues in relation to the potential representation of the State of Western Australia, ICWA and their officers, including the potential engagement of external counsel and solicitors.
71 On 9 June 2016, in accordance with Guidelines relevant to Ministers and Officers involved in Legal Proceedings, Mr Evans briefed the Attorney-General for Western Australia and the Treasurer. He sought approval from the Attorney-General in relation to the funding of, and arrangements for, external representation for the applicants as well as for the State of Western Australia and ICWA. Mr Evans considered that it was preferable that any external counsel and solicitors to be engaged be based in Sydney given that the examination summonses and orders to produce had been issued out of the New South Wales District Registry of the Court.
72 In the meantime, Mr Evans had discussions with senior counsel in Sydney, including with Mr Hutley SC who appears for the applicants on this application. On that day, Mr Evans also directed a solicitor in the SSO to commence preparing a brief for external counsel.
73 On 10 June 2016, the SSO sent a letter to Lipman Karas in which, amongst other things, the validity of the examination summonses and orders to produce was raised. In that connection, the letter said:
The State Solicitor and Mr Hargreaves are currently considering their response to the summonses and orders, including any application to stay the processes. We note that the summonses do not provide any indication of the examinable affairs of Bell Group NV (in liq) upon which it is contended Mr Evans or Mr Hargreaves could give information. In addition, the terms of the summonses and orders are very broad and seek production of documents which are clearly protected by privileges and immunities and, as such, are manifestly oppressive.
For the purposes of conferral, please advise us of the examinable affairs to which the summonses purport to relate, and upon which it is suggested Mr Evans or Mr Hargreaves could give information. In addition, we formally request a copy of the affidavit and submissions filed with the Federal Court in support of the application for the summonses.
74 A response to this letter was not received until 17 June 2016. In that response, Lipman Karas, on behalf of Mr Trevor, declined to provide the information that had been requested. They also declined, on behalf of Mr Trevor, to provide a copy of the affidavit filed in support of the originating process.
75 In the meantime, on 13 June 2016, Mr Evans attended a meeting between officers of ICWA and the SSO. That meeting included consideration of the further steps necessary to identify and review candidate documents for relevance, privilege and immunity, and the potential retention of an external firm and counsel to advise and act in relation to those matters.
76 On the same day, Mr Evans received approval from the Attorney-General to retain external legal representation to represent the State, ICWA and the applicants. The brief to Mr Hutley SC and Mr Ahmed, who was engaged as junior counsel for the applicants, was finalised.
77 On 14 June 2016, the SSO made contact with two firms of solicitors in Sydney with a view to discussing their availability and interest in acting. On 15 June 2016, a decision was made to engage the applicants' present solicitors, Jones Day. It appears that Jones Day was engaged to act as early as 17 June 2016, although the final terms of engagement were not settled until the following week. Nevertheless, in the meantime, discussions with counsel and solicitors proceeded over 16 and 17 June 2016 and further meetings took place between the SSO and ICWA in relation to compliance with the examination summonses and orders to produce.
78 Between 13 and 17 June 2016, work within the SSO in relation to the examination summonses and orders to produce continued, however that work was progressively disrupted by preparations for a scheduled move, and the actual move, of the SSO to new premises. These disruptions included periodic disruptions to information technology services, including email and document production, record facilities and research facilities. The move to the new premises was significant. It involved two years of planning and affected all staff at the SSO. The move took place, physically, between 17 and 19 June 2016.
79 On 17 June 2016, Ms Shaw identified the three day time limit under r 11.5(2) of the Corporations Rules. The circumstances in which this became known to, or was known by, Ms Shaw is not stated in the evidence. She has not, herself, given evidence on this subject. Mr Evans said that he became aware of the time limit either on Monday, 27 June 2016 or during the immediately preceding week when he first received a draft of the proposed interlocutory process and conferred with Jones Day. Mr Evans gave evidence on information and belief that Mr Hargreaves did not become aware of the time limit until sometime during the week of 21 June 2016, when he returned from pre-planned annual leave that he had taken from 6 to 20 June 2016, during which he was mostly interstate. Mr Evans also gave evidence on information and belief that Mr Meredith did not become aware of the time limit until 4 July 2016 and that Mr Whithear did not become aware of the time limit until either 5 or 6 July 2016 (that is, in each case, after the interlocutory process had been filed).
80 Evidence has been given as to the steps taken by the applicants between 20 June 2016 and 1 July 2016. It is not necessary for me to summarise that evidence other than to note that telephone conferences occurred between Mr Sefton, the Deputy State Counsel, who had been tasked with the process of engaging an external firm of solicitors, and Jones Day and that various aspects of preparation work were undertaken by Jones Day.
81 On 21 June 2016, Jones Day wrote to Lipman Karas identifying that they acted for the State of Western Australia, ICWA and the applicants. The letter recorded Jones Day's instructions that the examination summonses and orders to produce were liable to be set aside on grounds that included that the jurisdictional requirements for the exercise of the power under s 596B(1) of the Act had not been satisfied; that the examination summonses had not been issued for a proper purpose; and that the examination summonses were oppressive. The letter gave notice that Jones Day had been instructed to file an application to set aside the examination summonses or, alternatively, to limit their scope. The letter gave notice that the applicants would seek access to the affidavit filed in support of the originating process. Finally, the letter requested Lipman Karas to confirm that certain information had been provided to the Court in support of the relief sought in the originating process.
82 On 23 June 2016, Lipman Karas responded, stating:
As we explained in our letter to the State Solicitor's Office dated 17 June 2016, our client is under no obligation to respond to your clients' request for information. Accordingly, our client declines to respond to your query.
83 On 27 and 28 June 2016, Mr Evans and Mr Sefton attended conferences in Sydney with Jones Day. The conference on 28 June 2016 was also with counsel. At the latter conference, it was decided that it was appropriate for the interlocutory process to be settled by Mr Hutley SC who was not available to do so until 1 July 2016.
84 On 1 July 2016, a teleconference took place between Mr Sefton, Jones Day and counsel during which the form of the interlocutory process was settled and supporting evidence was discussed. On that day, an ex parte application was made to file the interlocutory process and to seek, amongst other orders, an abridgment of time for service on Mr Trevor and the Australian Securities and Investments Commission. As I have noted, on that day, Jagot J made relevant orders and the matter came back before Gleeson J on 4 July 2016 for the making of further orders that led to the hearing before me.
85 It can be seen that 14 to 16 business days had elapsed after service of the examination summonses and the orders to produce and before the interlocutory process was filed. This period included different public holidays in Western Australia and New South Wales, Mr Hargreaves' absence on annual leave until 21 June 2016, and the period of disruption caused by the SSO's move to new premises. Within that period, the SSO sought further information about the examination summonses and orders to produce, which Mr Trevor declined to provide. Shortly after their engagement, Jones Day had also advised Lipman Karas of the applicants' intention to move to discharge the examination summonses and the orders to produce.
86 Mr L'Estrange gave evidence that, prior to being engaged in this matter, Jones Day had not had any previous involvement in the proceedings and disputes involving BGNV, TBGL, BGF and other related entities.
87 The applicants submit that the evidence (which includes that given by Ms Jones, Ms Shaw and Ms Hamersley) shows that they have worked expeditiously and carefully to respond to the examination summonses and the orders to produce in circumstances where the summonses and orders were obtained in a State distant from their home jurisdiction and where they have been required to obtain new legal representation. They submit that the evidence discloses that, since service, they have taken numerous steps to obtain advice in relation to the scope of the summonses and orders and that those steps were more complicated than in an ordinary case given the Guidelines to which I have referred at [71] above. They also rely on their own lack of knowledge of the applicable time limit. Further, they rely on the fact that SSO corresponded with Lipman Karas on 10 June 2016 and that Jones Day similarly corresponded with Lipman Karas on 21 June 2016 with a view to obtaining information to help them consider their position, and that Lipman Karas declined, on behalf of Mr Trevor, to provide that information. The applicants say that Mr Trevor has known since 21 June 2016 of their intention to move to set aside the examination summonses and orders to produce.
88 Mr Trevor criticises the quality of the explanation given by the applicants for their delay and points to what he regards as being deficiencies in the evidence filed on their behalf, including the fact that, of the four applicants, only Mr Evans has made an affidavit and therefore given a direct explanation for his delay.
89 Mr Trevor argues that the evidence seems to reflect a change of heart on the part of the applicants in that, initially, it appears that they intended to comply with the summonses and orders. According to Mr Trevor, this intention appears to have changed on or around 21 June 2016 (see [81] above). Mr Trevor hypothesises that the applicants had consciously decided not to move to discharge the summonses and orders and that, now, they seek to resile from that decision. Alternatively, he hypothesises that the applicants made a deliberate decision to delay filing the interlocutory process.
90 Mr Trevor advances a number of submissions that attack the applicants' stated unawareness of the three day time limit. I do not propose to summarise all the submissions Mr Trevor makes other than to note that they raise a number of speculative possibilities as to what the applicants might have known or, perhaps, should have known. It is enough for me to say that, having considered these submissions, I am not persuaded that I should go behind the evidence that has been given. In short, I accept that each applicant was not aware of the time limit until the times recorded at [79] above.
91 I do accept, however, that from around 17 June 2016, officers within the SSO were aware of the time limit. On 21 June 2016, Jones Day put Mr Trevor on notice of the applicants' intention to move to discharge the examination summonses and the notices to produce. The question that arises is whether the effluxion of time from either 17 or 21 June 2016 to 1 July 2016, when the interlocutory process was filed, should stand as an additional reason why time should not be extended.
92 Mr Trevor submits that at no time did any of the applicants show concern that he was out of time or exhibit any sense of urgency. He argues that the applicants have adopted a leisurely approach, which appears to have been premised on the assumption that they are entitled to bring their application at a time of their choosing to suit their convenience and that of their counsel. Mr Trevor submits that this is not a satisfactory explanation for the delay.