Ariff v Fong

1. Order that the summons issued under s 596B of the Corporations Act 2001 (Cth) upon the application of Ian Kim Seng Fong summoning Yazni Ariff for examination be discharged. DECISION : 2. Order that each order for the production of documents made against Yazni Ariff on the application of Ian Kim Seng Fong be discharged. 3. Order that the application of Ian Kim Seng Fong (being the application for orders to the effect that examination of Yazni Ariff pursuant to the said summons proceed and that documents be produced by her) be dismissed. 4. Order that Yazni Ariff's costs of the applications of herself and Ian Kim Seng Fong determined by me this day be paid by Ian Kim Seng Fong.

CATCHWORDS : CORPORATIONS - voluntary administration - administration under deed of company arrangement - summons for examination issued under s 596B - applicant for summons an "eligible applicant" by virtue solely of ASIC authorisation - no time limit express or implied to "eligible applicant" status - deed of company arrangement terminated before any examination appointed or conducted - whether summons may be enforced and examination conducted after termination of deed - CONSTITUTIONAL LAW - judicial power of the Commonwealth - court empowered by Commonwealth law to order that person submit to examination about affairs of company subject to deed of company arrangement - examination inquisitorial in nature and of itself not judicial - whether power to compel examination incidental to judicial power - whether court given general supervisory jurisdiction with respect to company subject to deed of company arrangement

Australian Securities and Investments Commission Act 2001 (Cth), s 11(1) Civil Procedure Act 2005, s 68 LEGISLATION CITED : Constitution, Chapter III Corporations Act 2001 (Cth), Part s5.3A, 5.9, ss 9, 53, 445C(a), 444D, 444F, 444G, 444H, 445D, 445H, 447A, 447D, 447E, 449B, 449D, 449E(2), 450E(2), 480, 493(4), 493(6), 493(12), 493(14), 500(3), 504, 507(9), 509(6), s 510(3), s 510(4), 511(1)(a), 511(1)(b), 536, 596B, 1321, 1337B Judiciary Act 1903 (Cth) , s 78B

Application of Fiorentino and Hamilton; Re J & L International Pty Ltd [2009] NSWSC 1070 Australasian Memory Pty Ltd v Brien (1998) 45 NSWLR 111 Australasian Memory Pty ltd v Brien [2000] HCA 30; (2000) 200 CLR 270. Australian Securities and Investments Commission v Ariff [2009] NSWSC 829 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Ayerst (Inspector of Taxes) v C & K (Construction) Ltd [1976] AC 167 Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 Commissioner of Taxation v Linter Textiles Australia Ltd [2005] HCA 20; (2005) 220 CLR 592 Gould v Brown [1998] HCA 6; (19980 193 CLR 346 Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13; (2007) 156 FCR 501 Ilhan v Cvitanovic [2009] NSWSC 160; (2009) 73 NSWLR 644 Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 CASES CITED : Onefone Australia v One.Tel Ltd [2007] NSWSC 1188 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 Re BPTC Ltd No 2 (1992) 8 ACSR 533 Re BPTC Ltd No 5 (1993) 10 ACSR 756 Re Broken Hill & Argenton Smelting Co Ltd (1893) 19 VLR 111 Re Campbell Coverings Ltd [1953] Ch 488 Re Campbell Coverings Ltd (No 2) [1954] Ch 225 Re Leisure Developments Queensland Pty Ltd v Lenn & Palmer [2002] NSWSC 248; (2002) 41 ACSR 276 Re Metropolitan Bank (1880) 15 ChD 139 Re Pantmaenog Timber Co Ltd [2004] 1 AC 158 Re Sons of Gwalia Ltd; Ex parte Love [2008] WASC 75; (2008) 66 ACSR 253 Re Timberland Ltd (1979) 4 ACLR 259 R v Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48; (1976) 135 CLR 194

PARTIES : Yazni Ariff - Applicant Ian Kim Seng Fong - Respondent

COUNSEL : Mr M F Holmes QC/Ms R Francois - Applicant Mr P M Fordyce - Respondent

SOLICITORS : Mills Oakley Lawyers - Applicant PMF Legal - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

2006/257410 YAZNI ARIFF v IAN KIM SENG FONG JUDGMENT 1 I am dealing with two applications, one by Ms Yazni Ariff and the other by Mr Ian Kim Seng Fong. The applications were heard together. 2 Ms Ariff seeks two declarations, in the alternative, as follows: "1. A declaration that the Court does not have power to: (a) order that the sixth applicant (Yazni Ariff) be examined pursuant to the summonses for examination served on her; and (b) order that the sixth applicant produce documents in response to the order for production served on her. 2. In the alternative, a declaration that the examination summons and order for production addressed to the sixth applicant (Yazni Ariff) were not a valid exercise of the Court's powers." 3 Mr Fong seeks orders as follows: "1. Further to Order 1 made by Justice Hammerschlag on 6 August 2008, the Court orders that the examinations ordered by the Court in these proceedings on 5 July 2006 may now be conducted on such dates to be fixed by the Court. 2. The subpoenas and order for production issued to the parties other than: a Carlovers Carwash Limited b Carlovers Carwash (Aust) Ltd c Carlovers Carwash (Maroochydore) Pty Ltd d Carwash King e Clayton Utz are to be returnable on a date to be fixed by the Court." 4 Mr Fong is, in terms of the definition of "eligible applicant" in s 9 of the Corporations Act 2001 (Cth), an "eligible applicant" in relation to each of Carlovers Carwash Limited, Carlovers Carwash (Aust) Ltd, Carlovers Carwash (Maroochydore) Pty Ltd and The Carwash Kings Pty Ltd (I shall refer to these companies together as "the Carlovers companies"). Mr Fong acquired "eligible applicant" status by the combined effect of paragraph (e) of the s 9 definition and an authorisation by Australian Securities and Investments Commission ("ASIC") evidenced by letter dated 12 May 2006 (ASIC's power to act in the way contemplated by paragraph (e) comes from s 11(1) of the Australian Securities and Investments Commission Act 2001 (Cth)).

5 The definition of "eligible applicant" in s 9 is as follows: "eligible applicant" , in relation to a corporation, means: (a) ASIC; or (b) a liquidator or provisional liquidator of the corporation; or (c) an administrator of the corporation; or (d) an administrator of a deed of company arrangement executed by the corporation; or (e) a person authorised in writing by ASIC to make: (i) applications under the Division of Part 5.9 in which the expression occurs; or (ii) such an application in relation to the corporation." 6 The letter of 12 May 2006 was signed by a delegate of ASIC and was in the following terms: "I hereby authorise Mr Ian Kim Seng Fong as an 'eligible applicant' for the purposes of Division 1 of Part 5.9 of the Corporations Act 2001 in relation to the following corporations: CarLovers Carwash Limited (Subject to Deed of Company Arrangement) ACN 060 151 199 CarLovers Carwash (Aust) Pty Ltd (Subject to Deed of Company Arrangement) ACN 060 059 449 The Carwash Kings Pty Limited (Subject to Deed of Company Arrangement) ACN 064 292 342 CarLovers (Maroochydore) Pty Ltd (Subject to Deed of Company Arrangement) ACN 067 205 627 " 7 At the time of Mr Fong's authorisation by ASIC as an "eligible person" on 12 May 2006, the Carlovers companies were subject to deeds of company arrangement. The companies had become subject to voluntary administration under Part 5.3A of the Corporations Act on 10 July 2003. Stuart Ariff was the administrator. Each company executed a deed of company arrangement on 5 December 2003 and Stuart Ariff became the administrator of the deed. The deeds remained in operation until 1 November 2007. An order under s 445D was made on that date, with the result that s 445C(a) operated to terminate the deeds at that point. Ms Ariff is Stuart Ariff's sister. She worked as an employee or consultant in his insolvency practice and performed certain functions in relation to the Carlovers companies. 8 In seeking from ASIC authority to act as "eligible applicant" in relation to the Carlovers companies, Mr Fong made, through his solicitors, submissions to ASIC referring to his purposes in seeking the authority. The purposes were, in summary: (a) to examine how Stuart Ariff was charging his costs and disbursements of the administrations, that is, his accounting practices in relation to the Carlovers companies; (b) to investigate concerns about the prolongation of the administrations, that is, why the administrations were taking so long; (c) to look into the propriety of the remuneration being charged by Stuart Ariff; (d) to examine Stuart Ariff's fitness to be a registered liquidator for the purpose of persuading ASIC to take action against Stuart Ariff; and (e) to have the control of the Carlovers companies returned to the directors as soon as possible. 9 In July 2006, the court issued, on Mr Fong's application, an examination summons addressed to Ms Ariff requiring her to attend for examination about the examinable affairs of the Carlovers companies. The jurisdiction thus exercised was jurisdiction under s 596B of the Corporations Act, one of the two provisions in Part 5.9 providing for persons to be summoned for examination about the examinable affairs of corporations (the other is s 596A). The examination summons directed to Ms Ariff was issued upon an ex parte application made to the court by Mr Fong. 10 In August 2008, Ms Ariff made application for orders setting aside the examination summons. There was an alternative claim for an order that the examination summons be stayed "pending the outcome of" certain proceedings then recently commenced by ASIC against Stuart Ariff. On 6 August 2008, Hammerschlag J made an order as follows (Ms Ariff is the "sixth applicant" referred to therein): "Unless otherwise ordered by a Judge of this Court, no examination of the first applicant, second applicant or sixth applicant pursuant to the summonses for examination served on them, is to be conducted." 11 This is the order to which Mr Fong's first claim at paragraph [3] above relates. 12 Hammerschlag J did not, in terms, order that the examination summons in respect of Ms Ariff be stayed pending determination of the proceedings brought by ASIC against Stuart Ariff - or, indeed, that it be stayed at all. Different words were used to produce a result in substance similar to a stay. 13 The proceedings brought by ASIC against Stuart Ariff were commenced on 17 July 2008. Those proceedings were determined adversely to Stuart Ariff on 18 August 2009 on certain admissions made by him: see Australian Securities and Investments Commission v Ariff [2009] NSWSC 829. He was prohibited for life from holding the office of official liquidator, registered liquidator, liquidator, provisional liquidator, voluntary administrator, administrator of a deed of company arrangement or controller. He was ordered to pay compensation to various companies, including the Carlovers companies. Stuart Ariff became a bankrupt on 19 October 2009. 14 Two main questions are raised by the applications now before me and were canvassed in submissions: first (and assuming that the examination summons in respect of Ms Ariff has a valid statutory basis), whether Mr Fong may require Ms Ariff to present herself for examination now that the deeds of company arrangement are no longer in force; and, second, whether the statutory provisions under which the examination summonses in respect of Ms Ariff were issued are valid enactments of the Commonwealth Parliament. 15 The latter matter gives rise to a question under the Constitution of the Commonwealth or involving its interpretation. Notice under s 78B of the Judiciary Act 1903 (Cth) was therefore given to the attorneys-general of the Commonwealth, the States and the Territories. None elected to intervene in the proceedings. 16 For the moment, I assume the validity of the provisions under which the examination summons was issued and consider the impact of the circumstance that the deeds of company arrangement were terminated on 1 November 2007, that is, at a time when the examination summons in respect of Ms Ariff was in force but before she had been required to present herself for examination. 17 Each deed of company arrangement was of a familiar kind. The deed administrator (Stuart Ariff) was charged with the task of assembling a deed fund (or, more precisely, two deed funds), ascertaining and adjudicating the claims of creditors and applying the deed funds in the ways set out in the deed. Creditors were required to accept their entitlements under the deed in full satisfaction of their claims. Admitted claims were barred except to the extent admitted and unadmitted claims were barred altogether. By virtue of s 444G of the Corporations Act, the deed bound the company, its officers and members and the deed's administrator, while under s 444D, it bound all creditors as regards claims arising on or before 10 July 2003. Section 444H released the company from creditors' debts as provided in the deed itself. 18 When, on 1 November 2007, the court made an order under s 445D(1) terminating the deeds of company arrangement, s 445H preserved the previous operation of each deed but no deed could thereafter be the source of any new right or obligation. Each deed ceased to confer powers on the deed administrator and there were no longer any functions remaining for the deed administrator to perform. Nor did any of the deeds have any further or continuing operation.

19 I mention these matters concerning the effects of termination of the deed as a precursor to a consideration of the decision of French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13; (2007) 156 FCR 501. His Honour there held that the inquisitorial processes of Part 5.9 were not available in relation to a company that was not and had never been subject to any form of external administration or other process contemplated by Chapter 5. ASIC had granted an authority to Highstoke (a company) causing it to come within paragraph (e) of the s 9 definition of "eligible applicant" in relation Hayes Knight, its predecessor as trustee for debenture holders of Performance Finance. Highstoke, on behalf of the Performance Finance debenture holders, had commenced proceedings against Hayes Knight alleging misfeasance as trustee. Upon application made to the Federal Court, it obtained the issue of an examination summons in respect of one O'Brien, a director of Hayes Knight, with a view to investigating Hayes Knight's professional indemnity insurance. French J ordered that the examination summons be discharged and that the authority granted by ASIC to Highstoke be quashed.

20 The decision was based squarely on a conclusion that, although s 596A and s 596B are not, in terms, confined to a company under some form of Chapter 5 external administration or other Chapter 5 process, the context in which the provisions appear, coupled with the legislative history, indicates conclusively that the sections have no application to a company which is not in some way being dealt with pursuant to Chapter 5 when resort is had to them. I need not trace the reasoning of French J in its entirety. It is, in my respectful opinion, compelling. His Honour's conclusions are stated at paragraphs [81] to [91] of the judgment which merit quotation in full: "[81] The principal question in this case in respect of both the authorisation of eligible applicants by ASIC and the issues of summonses and subsequent examination under Pt 5.9 is whether the application of the empowering provisions is limited to the examinable affairs of corporations under external administration. The term "external administration", as earlier noted, is not defined in the Corporations Act although there is a definition of an "externally- administered body corporate" which is not of any particular assistance. The principal question may be reduced to the more precise inquiries whether the corporations whose examinable affairs are referred to in ss 596A and 596B are corporations subject to one of the forms of external administration or other processes for which Ch 5 provides. [82] In construing any statute the first resort must be to its ordinary words having regard to their context and their purpose. Section 596A refers to examination of "a corporation's examinable affairs". It does not, by that language, limit the class of corporations to which it applies to those under some form of external administration. The class of persons who may be subject to a mandatory summons are set out in s 596A(b). Subparagraphs (i), (ii) and (iii) define them by reference to corporations under specific forms of external administration, namely administration (as defined in s 435C), deeds of company arrangement and winding up. Subparagraph (iv) covers residual circumstances by use of the word "otherwise". [83] If "otherwise" in subpara 596A(b)(iv) refers to other forms of administration then the section is properly construed as limited to corporations under one of the three specified forms of external administration and any other forms for which Ch 5 provides. If "otherwise" refers to any other circumstance at all, then the section allows a summons to issue for examination of persons in respect of any corporation's examinable affairs whether it is in external administration or not. [84] There are forms of external administration not covered by s 596A(b)(i), (ii) and (iii). A person may be appointed to administer a compromise or arrangement approved under Pt 5.1 of the Act. Certain categories of persons cannot be so appointed without the leave of the court: s 411(7). Part 5.2 covers the qualifications, appointment, powers and duties of receivers and controllers of the property of corporations. The court is given functions in respect of such persons including determining the validity of appointments and of the entry by controllers into possession of company property: s 418A. The court may authorise the controller of property of a corporation to dispose of it despite a prior charge, s 420B, and otherwise to supervise the performance of the duties of such persons: s 423. Parts 5.1 and 5.2 appear to cover forms of external administration not included in those specifically enumerated in s 596A. There is therefore work for s 596A(b)(iv) to do by reference to those other forms of external administration.

[85] Section 596B does not contain any terms which expressly limit its application to corporations under external administration. Nevertheless, like s 596A, it must be read in the context in which it appears. [86] The ordinary meaning of the words of both ss 596A and 596B would permit their application to the examinable affairs of any corporation whatever its status. But they are found in a chapter dealing with arrangements and reconstructions, receiverships, administration with a view to execution of a deed of company arrangement and winding up in insolvency and otherwise. Not all of these parts of Ch 5 seem to fall readily within the term "external administration". This is particularly so of arrangements and reconstructions. Nevertheless they are processes subject to court approval and supervision. "External administration" is not a term of particular statutory significance here beyond its use as the title to Ch 5. What is of significance is the context provided by Ch 5, however it is described. [87] The context in which Pt 5.9 of the Corporations Act appears, as a set of miscellaneous provisions in Ch 5, strongly suggests that the examination power is intended to be ancillary to the functions of the court and/or the functions of external receivers, controllers or liquidators of corporations for which Ch 5 makes provision. In so far as Ch 5 validly confers judicial functions on the court, the power to issue summonses for examination may be seen as incidental to such functions. There is, of course, a separate question in the present case about the validity of the examination power if it purports to extend to cases of corporations not subject to any form of administration or judicial function to which it would be incidental. That question is discrete and its consideration does not resolve the validity of all possible applications of the power to corporations subject to processes for which Ch 5 provides. In particular, it does not answer the question whether the examination power in aid of non-judicial processes of external administration would be a valid exercise of the judicial power. [88] In my opinion the context in which Pt 5.9 operates is inconsistent with the propounded construction of ss 596A and 596B as conferring a general power on the court to issue summonses for the examination of persons about the examinable affairs of any corporation whether or not affected by other processes for which Ch 5 provides. It is inconsistent also with the history of the legislation. That history indicates, it is true, a widening of the power of examination beyond the examinable affairs of corporations subject to winding up orders. But the historical roots of the power lie deep in corporate insolvency law nourished by the development of the examination powers in respect of bankrupt individuals. The proposition that s 541 of the Companies Codes introduced, by a sidewind, unrecognised in the explanatory memorandum, a general power in the courts to examine persons about the affairs of corporations is, with respect, improbable. It is remarkable that the Harmer Report would have failed to recognise the statutory divergence from that closer alignment with bankruptcy law which it proposed. The explanatory memorandum for the 1992 amendments which introduced ss 596A and 596B into the Corporations Law was focussed on insolvency and forms of external administration. Moreover if a general power of judicial examination of persons about the affairs of corporations were intended, the question arises whether there was any point in retaining specific references to the various categories of external administration mentioned in s 596A.

[89] In my respectful opinion, the weight of authority, to the extent that it has considered the matter tends to support the proposition that ss 596A and 596B and their predecessors have been seen as provisions applicable to companies in one or other form of administration and not as applicable to companies at large. So much appears from the judgment of the Full Court in Compass Airlines [ Re Compass Airlines Pty Ltd (1992) 35 FCR 447] and the Court of Appeal of New South Wales in Hong Kong Bank [ Hong Kong Bank of Australia Ltd v Murphy (1998) 28 NSWLR 512]. New Zealand Steel [ New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610] also appears to be consistent with the views expressed by Gleeson CJ that the statutory context of s 597 was that of "external administration". It follows that I would not, with respect, agree with the obiter observations at [84] of the Wainter judgment [ Re Newtel Ltd; Evans v Wainter Pty Ltd [2005] FCAFC 114; (2005) 145 FCR 176] which would see the application of ss 596A and 596B extended to solvent corporations not under any form of external administration. [90] It is not necessary for present purposes to extract from Ch 5 all of the conceivable classes of corporate circumstances covered by that chapter to which s 596A or s 596B may be incidental and, as a matter of construction, applicable. It is sufficient to say that they do not extend to the examinable affairs of a corporation which is not under any form of external administration nor subject to any other judicial or administrative process for which Ch 5 provides.

[91] There is no suggestion in this case that Hayes Knight itself was under any form of Ch 5 administration or process. It had been removed by the court as a trustee for the Performance Finance debenture holders under Ch 2L of the Act. That removal process, however, was at an end. In the light of what I think is the correct construction of s 596A there was no basis upon which a summons could issue under that section for the examination of any officers of Hayes Knight in respect of its examinable affairs. That would not, of course, have prevented the issue of a summons for the examination of officers of Hayes Knight in respect of the examinable affairs of Performance Finance. The summons issued was therefore, in my opinion, beyond the power of the court to issue and should be discharged."

21 It was pointed out by Mr Fordyce, on behalf of Mr Fong, that the present case is distinguishable on the facts from Highstoke. When Mr Fong was authorised by ASIC and later applied for and obtained the issue of an examination summons in respect of Ms Ariff, each of the Carlovers companies was subject to an extant and continuing deed of company arrangement under Part 5.3A. The objection upheld in Highstoke therefore cannot be advanced here. The nexus with some form of Chapter 5 administration or process existed at both relevant times just mentioned. Consistently with French J's reasoning, it was submitted, there was a valid and legitimate basis for ASIC's putting the examination process into the hands of Mr Fong and for his obtaining the summons for examination of Ms Ariff. 22 That submission must be accepted. But, of course, circumstances later changed - and the change occurred before any examination of Ms Ariff had been undertaken pursuant to the examination summons issued on Mr Fong's application. On 1 November 2007, the Carlovers companies ceased to be subject to deed of company arrangement. Since that date, the Carlovers companies have not been affected by any form of Chapter 5 external administration or other Chapter 5 process. 23 It is the contention of Ms Ariff that, in the absence of any currently subsisting Chapter 5 administration or process in relation to the Carlovers companies, the efficacy of the examination summons is spent and there no longer exists any valid pretext for examination of her pursuant to it. The contrary submission made on behalf of Mr Fong by Mr Fordyce is that the Carlovers companies have live and continuing causes of action against a number of persons - certainly including Stuart Ariff and perhaps including Ms Ariff as a recipient of funds or other benefits from Stuart Ariff - and that those companies, through Mr Fong, are entitled to pursue the examination of Ms Ariff in order to obtain information relevant to the evaluation and possible pursuit of those causes of action. 24 Mr Fordyce pointed, in that connection, to the definition of "affairs" in s 53 and, in particular, to paragraph (d) of that definition which makes it clear that acts and things of a particular description there mentioned are within the examinable affairs of a corporation if they have a temporal connection with one of several forms of external administration; and that it is quite possible to inquire, in a retrospective way, into matters so limited even after the period involved in the temporal connection has expired. 25 I do not accept Mr Fordyce's submissions. The position is as stated in the submission advanced on behalf of Ms Ariff. The Carlovers companies ceased to be subject to any form of Chapter 5 administration or process when the deeds of company arrangement were terminated by order of the court on 1 November 2007. Had Mr Fong, at that point, for the first time sought the issue of an examination summons in respect of Ms Ariff, the reasoning in Highstoke would have caused his application to be refused. The absence, after termination of the deeds of company arrangement, of any ongoing Chapter administration or process would have meant that there was no proper occasion for the deployment of that form of coercion by the issue of an examination summons. Likewise, the absence since 1 November 2007 of any Chapter 5 administration or other process means that there is no proper occasion for the deployment of coercion by requiring attendance in response to the pre-existing examination summons. 26 There is an anomalous aspect of the part of the s 9 definition of "eligible applicant" relevant to this case. Each category of "eligible applicant" other than that arising under paragraph (e) of the definition is delineated by reference to the holding of a particular office or the existence of a particular status in relation to the corporation in question - liquidator of the corporation, provisional liquidator of the corporation, administrator of the corporation or administrator of a deed of company arrangement executed by the corporation. Each such office or status has a natural ending or conclusion. A liquidator is discharged and ceases to hold office when the court so orders under s 480 in the case of a compulsory winding up or upon culmination of the winding up in dissolution in the case of a voluntary winding up (and, in each case, if the winding up is terminated by order of the court). A provisional liquidator's tenure is governed by orders of the court and will come to an end either when a winding up order is made or the court discharges the provisional liquidator. The tenure of a voluntary administrator or the administrator of a deed of company arrangement ceases when applicable statutory provisions cause the administration to end or the deed of company arrangement to be terminated. There is, in each of these cases, a necessary connection between the subsistence of the particular form of administration and the holding of the particular office or status. It is meaningless to speak of the liquidator of a company not in the course of being wound up or the provisional liquidator of a company in respect of which an order appointing a liquidator provisionally is not in force or the voluntary administrator of a company not subject to voluntary administration or the administrator of a deed of company arrangement in respect of a company that is no longer subject to a deed of company arrangement. 27 In the case of the species of "eligible applicant" who derives his or her status as such from authorisation by ASIC as envisaged by paragraph (e) of the s 9 definition, there is no necessary connection with some form of external administration. Nor, therefore, does the status carry with it some natural ending or conclusion. In the present case, Mr Fong's authority is unlimited by time (there is nothing in paragraph (e), in any event, that envisages the imposition of a time limit). It follows that, subject only to the effect of any relevant statutory provision to the effect that a power to appoint or authorise carries with it a power to terminate the appointment or authority, Mr Fong will remain an "eligible applicant" in relation to the Carlovers companies until the day he dies. 28 It is relevant to note the way in which the Carlovers companies are described in Mr Fong's authority created by the letter from ASIC quoted at paragraph [6] above. It will be observed that "(Subject to Deed of Company Arrangement)" appears as part of the description of each of "the following corporations". The statutory requirements with respect to the use of these words in relation to a company affected by a deed of company arrangement are contained in s 450E(2) of the Corporations Act. Those requirements are binding on the company itself. The company must include the expression "(subject to deed of company arrangement)" after its name where first appearing in various documents it creates or issues. The requirement ceases to operate when the deed terminates. Nothing requires an outsider referring to the company to describe it as being "subject to deed of company arrangement". ASIC nevertheless chose to do so. It should, in my opinion, be taken thereby to have indicated that the corporations to which the authority of Mr Fong extended were the named companies as companies subject to deed of company arrangement. 29 I do not suggest that the aspect of the description of each company to which I have just referred caused Mr Fong's authority to be subject to some limit so as to make it an authority for a finite period only. Rather, the description emphasises that the grant of authority was related to the circumstance that each company was subject to a deed of company arrangement. This reinforces the conclusion that Mr Fong's authority is properly exercised only for purposes having some rational connection with a deed of company arrangement or, more broadly, the effectuation of the Chapter 5 regime applicable to the companies by reason of their being under deeds of company arrangement. 30 It is understandable that the questions determined by French J in the Highstoke case arose in relation to an "eligible applicant" within paragraph (e) of the definition. There is no apparent basis on which the same questions could arise in relation to a liquidator, provisional liquidator, voluntary administrator or administrator of a deed of company arrangement. His Honour's decision is, in substance, that the authority of a paragraph (e) "eligible applicant" is subject, by necessary implication (drawn from the terms of the statute), to the limits, as to subject matter and timing, that apply naturally to the other categories of "eligible applicant" by reason of the purpose and duration of their "eligible applicant" status. 31 Given the conclusions expressed by French J and his reasoning, considered in the light of the descriptions of the relevant companies in the authority granted by ASIC, Mr Fong's capacity to make use of the examination facility created by Part 5.9 must be taken to have come to an end when, on 1 November 2007, the Carlovers companies ceased to be subject to any Chapter 5 administration or process and, in particular, ceased to be subject to a deed of company arrangement. At that point, there was no longer any state of affairs in aid of which the examination process could properly be deployed; and the companies had ceased to be of the description in ASIC's letter of authority. Although the summons was validly issued in July 2006, the purposes it was intended to serve, being purposes related to the particular form of Chapter 5 regime affecting the Carlovers companies when "eligible applicant" status was conferred on Mr Fong, now no longer exist. 32 It follows that Ms Ariff is entitled to relief ensuring that she is not now subjected to examination pursuant to the extant examination summons. On the assumption that the provision under which the examination summons was issued is valid, I am not, however, satisfied that that relief should take the form of a declaration in terms of item 1(a) at paragraph [2] above. Rather and as in the Highstoke case, the summons should simply be discharged. This is on the basis that any future use of the summons would be for a purpose foreign to the purposes for which the summons was issued. It also follows that Mr Fong is not entitled to an order in terms of item 1 at paragraph [3] above. 33 In relation to the matter of orders for production (referred to at item 1(b) at paragraph [2] above and item 2 at paragraph [3]), I have not so far mentioned that orders requiring production of documents were made against Ms Ariff under s 68 of the Civil Procedure Act 2005 at the same time as the examination summonses were issued. But those orders are, of their nature, merely adjuncts to the examination process: see Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 at 52-53; Re BPTC Ltd No 5 (1993) 10 ACSR 756 at 762; Re BPTC Ltd No 2 (1992) 8 ACSR 533; Re Leisure Developments Queensland Pty Ltd v Lenn & Palmer [2002] NSWSC 248; (2002) 41 ACSR 276; Onefone Australia v One.Tel Ltd [2007] NSWSC 1188 at [17] to [20]; Application of Fiorentino and Hamilton; Re J & L International Pty Ltd [2009] NSWSC 1070. It follows that discharge of the examination summons must be accompanied by discharge of the order for production. 34 The conclusions just stated are sufficient to dispose of the applications before me. There is, strictly speaking, no need to consider the validity of the statutory provisions under which the examination summons directed to Ms Ariff was issued. I nevertheless do so briefly for the sake of completeness. 35 Ms Ariff's contention is that the examination summons was fatally flawed from the very outset because the court had no power to issue it. The objection she advances is that, insofar as s 1337B of the Corporations Act purports to confer on the courts to which it refers (including this court) jurisdiction with respect to the particular species of "civil matter" (as defined by s 9) arising under Part 5.9 which entails compulsory examination of a person about the affairs of a company that has executed a deed of company arrangement, the purported conferral is not authorised by Chapter III of the Constitution. This is because Chapter III does not allow the Commonwealth Parliament to confer on any court, whether Federal or State, a power that is not judicial power. The basic contention is that the power under Part 5.9 of the Corporations Act to summon a person for examination is not a judicial power. 36 Reference may again be made to the judgment of French J in Highstoke. His Honour observed (at [106]) - uncontroversially, in my view - that, divorced from association with a judicial function, nothing about the examination power under the Corporations Act marks it as judicial in character. It is an inquisitorial power in no way directed towards the determination of disputes and the ascertainment of rights and obligations. French J continued (at [107]): "It can only be accommodated within the exercise of judicial power if incidental to it or justified by historical usage. An examination ordered in aid of the implementation of a winding up order made by a court can be seen as incidental to the exercise of judicial power and has long been accepted as such, at least implicitly if not explicitly, on that basis. On the other hand an examination which is 'free standing' in the sense that it is exercised without reference to any pending proceeding does not fall within the scope of the judicial power unless it can be characterised as judicial on the basis that it is a function which courts have long carried out." 37 The quality of an examination as non-judicial in its own right means that it can be of a judicial character only if, in a particular context, it is incidental to some other proceeding or process that is judicial. In the case before me, of course, the other proceeding or process is administration under a deed of company arrangement. 38 The judicial character of examination as auxiliary or incidental to a winding up by the court is well established. It is sufficient to refer, in that connection, to Gould v Brown [1998] HCA 6; (1998) 193 CLR 346, per Brennan CJ and Toohey J at [31] - [33], per Gaudron J at [66] - [70], per Kirby J at [327] - [330]. As Marks J observed in Re Timberland Ltd (1979) 4 ACLR 259: "The winding up is by the court which for the purposes the liquidator is." 39 Members of the High Court referred in Gould v Brown to analogies with bankruptcy and to the fact that established notions of judicial functions existing at the time of the adoption of the Constitution are to be taken into account. French J, in the passage quoted at paragraph [20] above, referred to "a function that courts have long carried out". It is relevant to note, in that connection, that use of the examination process in relation to voluntary winding up was recognised in Australia as early as 1893: Re Broken Hill & Argenton Smelting Co Ltd (1893) 19 VLR 111. The statutory basis was the provision now replicated in s 511(1)(b) of the Corporations Act empowering the court to exercise in a voluntary winding up any power that it might exercise if the company were being wound up by the court. In England, the availability of the examination process in a voluntary winding up was not questioned in Re Metropolitan Bank (1880) 15 ChD 139 and was confirmed in a number of more recent cases: Re Campbell Coverings Ltd [1953] Ch 488; Re Campbell Coverings Ltd (No 2) [1954] Ch 225; Re Pantmaenog Timber Co Ltd [2004] 1 AC 158. 40 The general assimilation of voluntary winding up to winding up by the court was recognised by the House of Lords in Ayerst (Inspector of Taxes) v C & K (Construction) Ltd [1976] AC 167 and by the High Court in Commissioner of Taxation v Linter Textiles Australia Ltd [2005] HCA 20; (2005) 220 CLR 592 (see also Ilhan v Cvitanovic [2009] NSWSC 160; (2009) 73 NSWLR 644). 41 The fact remains, however, that a voluntary winding up is a non-judicial process at least in the narrow sense that it is initiated without resort to the court and is usually carried through to its conclusion without any approach to or intervention by the court. At the same time, however, there are many provisions of the Corporations Act giving the court jurisdiction in relation to voluntary winding up. Section 511(1)(b), as already noted, enables the court to exercise in a voluntary winding up any power exercisable by it in a winding up by the court. Specific powers referable to voluntary winding up alone are conferred on the court by s 493(4), s 493(6), s 493(12), s 493(14), s 500(3), s 504, s 507(9), s 509(6), s 510(3), s 510(4) and s 511(1)(a). In addition, a number of provisions applicable alike to winding up by the court and voluntary winding up confer power on the court. Significant among the last-mentioned are s 536 concerning supervision of liquidators and s 1321 under which the court may confirm, reverse or modify an act or decision of a liquidator. 42 I mention these matters (including, in particular, recognition, before Federation, of the availability of the examination process in relation to voluntary winding up) as a precursor to consideration of the decision of Le Miere J in Re Sons of Gwalia Ltd; Ex parte Love [2008] WASC 75; (2008) 66 ACSR 253 upon which submissions concentrated in this part of the case. 43 The question before Le Miere J in that case was the question now before me, that is, whether s 596B, in empowering the court to order examination about the examinable affairs of a company subject to deed of company arrangement, is constitutionally valid. His Honour held that it is. He agreed with French J in Highstoke that the examination process, divorced from association with a judicial proceeding, is not of a judicial character. He then concluded that the examination power, as it relates to the examinable affairs of a company subject to deed of company arrangement, is of a judicial character because it is ancillary to the court's general supervisory jurisdiction over the corporation subject to deed of company arrangement, being jurisdiction conferred by Part 5.3A as a whole. I quote paragraphs [68] to [71] of the judgment: "[68] The Act does not confer on the court a necessary role in the initiation of a voluntary administration, the convening of meetings to consider a deed of company arrangement or the approval of that deed. However, in addition to the specific powers which are conferred upon the court such as the regulation of creditor's rights (for example, ss 441H, 444F); the supervision of administrators (s 447E); and fixing or reviewing the administrator's remuneration (s 449E), the court has a general supervisory jurisdiction: s 447A. That jurisdiction may be invoked by any interested person, including the company, a creditor, the administrator or ASIC: s 447A(4). [69] The object of Pt 5.3A is to provide for the administration of the business, property and affairs of an insolvent company. The administration begins when an administrator is appointed under ss 436A, 436B or 436C. Those sections provide for appointment by persons other than the court. The administration may end in a variety of ways. One way is that the court orders that the administration is to end: s 447A(2).

[70] Division 13 of Pt 5.3A deals with powers of the court. Section 447A(1) provides that the court may make such orders as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company. In addition to the general power conferred by s 447A, the other sections of Div 13 confer further powers on the court to supervise or control the administration. Section 447B provides that the court may make such orders as it thinks necessary to protect the interests of the company's creditors while the company is under administration. Section 447C empowers the court to declare whether a purported appointment of a person as administrator of a company is valid. Under s 447D the administrator of a company under administration, or of a deed of company arrangement, may apply to the court for directions about a matter arising in connection with the performance or exercise of any of the administrator's functions and powers. Section 447E empowers the court to make such order as it thinks just if it is satisfied that the administrator's actions are prejudicial to creditors or members. Section 447E(2) empowers the court to make such order as it thinks just where there is a vacancy in the office of administrator. [71] There are other specific powers conferred upon the court to regulate or supervise the administration of the affairs of a company under administration or that has executed a deed of company arrangement. Those powers, and particularly the power conferred by s 447A, when exercised by the court are judicial powers. Orders made under s 447A determine how the legal rights and obligations arising under Pt 5.3A operate in relation to a particular company. Section 447A orders are issued and enforceable by the court. Furthermore, the power conferred by s 447A is limited by the objects of Pt 5.3A set out in s 435A: see Harris J, "The Constitutional Basis of Section 447A: Is it a Power without Limit?" (2006) 14 Insolvency Law Journal 135 at 143 and following." 44 Emphasis was thus placed on s 447A. That section is as follows: "(1) The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.

(2) For example, if the Court is satisfied that the administration of a company should end: (a) because the company is solvent; or (b) because provisions of this Part are being abused; or (c) for some other reason; the Court may order under subsection (1) that the administration is to end.

(4) An order may be made on the application of: (a) the company; or (b) a creditor of the company; or (c) in the case of a company under administration--the administrator of the company; or (d) in the case of a company that has executed a deed of company arrangement--the deed's administrator; or (e) ASIC (f) any other interested person." 45 Section 447A was seen by Le Miere J as the most significant of several sections within Part 5.3A which, taken together, enable the court to superintend the affairs of a company subject to deed of company arrangement. In paragraph [68] of the judgment, however, s 447A is singled out as the source of a "general supervisory jurisdiction" of the court; and in paragraph [71] the central role of that section in the process of analysis is emphasised.

46 Mr Holmes QC, with whom Ms Francois of counsel appeared for Ms Ariff, submitted that it is incorrect to regard s 447A as vesting in the court a "general supervisory jurisdiction". It follows, he says, that the stated basis for finding the existence of judicial power to which the examination power is auxiliary or incidental in the Part 5.3A context was in reality lacking in the case before Le Miere J and is lacking in the case before me. 47 Reference was made to Australasian Memory Pty Ltd v Brien (1998) 45 NSWLR 111. The leading judgment was delivered by Sheppard A-JA with whom Meagher JA agreed (Powell JA did not, I think, express in his separate judgment any different view on the matter about to be mentioned). Sheppard A-JA referred (at 142 - 143) to reservations expressed in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 on the question whether s 447A was within constitutional power (Brennan CJ, McHugh J, Gummow J, Kirby J and Hayne J at [63]; Gaudron J at [150]). It was not necessary, however, for the members of the High Court to decide the question in the Patrick case. 48 Mr Holmes QC referred to the following passage in the judgment of Sheppard A-JA (at 150): "It is necessary first of all to come to a conclusion as to whether s 447 A confers other than judicial power. In my opinion it does not. I agree with the submissions made by counsel for the Attorney-General for the Commonwealth that the power conferred by s 447 A is not at large. It is a power to make orders about how Pt 5.3A is to operate in relation to a particular company. I agree that it does not go beyond dealing with the position of a particular company and that it does not extend to an order dispensing with some or all provisions of Pt 5.3A and declaring that some different regime is to operate. It is a power to ensure that the administration procedure in relation to a particular company operates in accordance with the objects of the Part. Those objects provide the parameters within which the power must be exercised and the criteria by which decisions are to be made. Orders are made on application to a court. The application is required to be served on interested parties. Relevant interests are heard, facts are found and the law applied to them. There is a matter of controversy between parties before the Court and the Court's decision is in relation to that controversy or matter." 49 There was thus a clear finding by the Court of Appeal that the s 447A power is judicial in character. That characterisation was not disturbed when the case went to the High Court: Australasian Memory Pty ltd v Brien [2000] HCA 30; (2000) 200 CLR 270. 50 The central submission of Mr Holmes, however, is that there is no general supervisory power of the kind found by Le Miere J; and that s 447A, upon which particular reliance was placed, is not the source of any such jurisdiction. The correct view of s 447A, it is said, is that it confers a particular power of a remedial nature to be exercised on a case by case basis in relation to a particular company. As a result, it is said, it is a power of the kind discussed by the High Court in R v Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48; (1976) 135 CLR 194. That case concerned a provision of the Conciliation and Arbitration Act 1904 empowering the Commonwealth Industrial Court to make orders rectifying invalidity found to have occurred in the affairs of a registered organisation or to negative or modify the legal consequences of the invalidity. This, it was submitted before me, is a statutory power analogous with that conferred on the court by s 447A: in essence, a statutory power to alter what would otherwise be the ordinary and natural legal consequences of a particular state of affairs. The High Court held that the power thus conferred on the Industrial Court was judicial in character. It did so, however, in a context where the empowering provision followed on from an earlier provision enabling the court to determine whether invalidity had occurred in the management or administration of an organisation. Only if a determination of invalidity was made under the earlier section did the court's power to rectify or otherwise deal with invalidity arise. 51 The essential basis for the decision that the later provision conferring the power to rectify entailed a judicial function was stated by Stephen J (with whom Barwick CJ agreed), (at 210) as follows: "These provisions are concerned exclusively with the nature of the remedies open to the Court once it has adjudicated upon matters which have been initiated by a party and the determination of which is an eminently judicial function. The particular nature of an available remedy, at least when it is one not unfamiliar as part of the traditional equipment of courts of law or equity, can seldom be such as of itself to involve a court in a non-judicial function." 52 Mason J and Murphy J said (at 216): "In the exercise of judicial power courts are called upon to decide whether particular transactions are invalid or unenforceable under the legislation relating to companies, money-lending and hire-purchase. Likewise they are frequently required to determine whether procedural steps taken in the course of legal proceedings have been validly or regularly taken. In each class of case the courts are empowered to relieve against invalidity, unenforceability or irregularity after having regard to any injustice, prejudice or hardship that may be caused by the making of such an order. This function, so it seems to us, is essentially an exercise of judicial power. Even if this were not so, the exercise of the power to grant relief must be regarded as incidental to the exercise of judicial power which is involved in the determination of the initial issue of invalidity, unenforceability or irregularity. For our part, we can perceive no real difference between these functions and the role thrust upon the Australian Industrial Court by s. 171 C . The exercise of the power given by s. 171 C (2), if not itself an exercise of judicial power (which in our opinion it is), is incidental to proceedings for a declaration of invalidity under sub-s. (1) which involves the exercise of such power." 53 There was thus a finding that the power to rectify invalidity or to modify or negative the legal consequences of invalidity was judicial in character because of its relationship with the power to determine whether or not invalidity existed. But Mason J and Murphy J, while adopting that view, were also of the opinion that the power to rectify or to modify or negative the legal consequences of invalidity was judicial in nature in its own right, that is, even when viewed in isolation from the antecedent power. 54 It is not open to me to conclude that the power vested in the court by s 447A is not judicial power; and this is so whether or not one regards it as a remedial power. The Court of Appeal, in the Australasian Memory case, authoritatively stated that its character is judicial. The more pertinent inquiry, for present purposes, is whether s 447A - or Part 5.3A more widely - in truth creates a general supervisory jurisdiction of the court to which the Part 5.9 power in relation to examination is properly regarded as incidental or auxiliary. 55 In my opinion, such a general supervisory jurisdiction does exist in relation to a company subject to deed of company arrangement and is a product not merely of s 447A (which, it may be noted, was said by Young J in Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 at 611, to give the court a "supervisory capacity") but of the totality of the Part 5.3A provisions concerning deeds of company arrangement supplemented, importantly, by s 1321 which makes every act, omission and decision of the administrator of a deed of company arrangement subject to review and, as necessary, confirmation, reversal or modification by the court. The administrator of a deed of company arrangement operates under the scrutiny and supervision of the court in performing functions the content and incidents of which may be controlled or varied in various ways by the court. For example, the court has a measure of control over the content of the deed under s 445B and may facilitate its effectuation by staying or controlling actions of certain third parties in relation to the company's property (s 444F). Many aspects of the court's jurisdiction are exercisable on application made by a deed administrator. Such an administrator may be removed by order of the court (s 449B); may have his or her remuneration varied by the court (s 449E(2)); may be subjected to such order as the court thinks just in the case of conduct prejudicial to the interests of members or creditors (s 447E); is entitled to the guidance of the court by way of direction in relation to the performance of his or her functions (s 447D); and is subject to review and, as necessary, correction by order of the court in relation to any act, omission or decision (s 1321). In addition, any vacancy in the office of deed administrator can only be filled by the court (s 449D).

56 The court functions, under each of the provisions I have mentioned, in the traditional way. In most cases, the provision identifies persons who may make application to the court for the grant of the particular form of relief. In all cases, it is clearly implied (if not actually stated) that a person with a legitimate interest in the subject matter has a right to be heard on the application. And the expectation that the court will in all cases proceed according to the usual course of adversarial proceedings is beyond doubt. Just as the s 447A power, viewed in isolation, is a judicial power, so each separate component of the wider supervisory jurisdiction in relation to a company subject to deed of company arrangement is of a judicial character, so that the whole is also judicial. 57 While the administrator of a deed of company arrangement (like a liquidator in a voluntary winding up) is not an officer of the court in the same way as the liquidator in a winding up by the court, the statutory system of access to the court and oversight and control by the court - even to the extent of dismissal and replacement - makes the position of such an administrator closely analogous with that of a liquidator in a winding up by the court. 58 There is the added point that administration under a deed of company arrangement has, in broad terms, a number of the hallmarks of creditors voluntary winding up. Creditors themselves decide to adopt a particular scheme of administration of assets. The decision of the creditors voting on the matter causes the scheme to become binding on the company and its constituency generally. An official installed by determination of the creditors proceeds to put the scheme into effect. Creditors are bound in respect of pre-existing claims (s 444D) and the deed may deal in a binding way with those debts (s 444H), so that rights to participate under the deed may come, in effect, to replace pre-existing debts. The parallel with creditors voluntary winding up is clear - the real point of distinction being that winding up leads inexorably to dissolution while the consequence of a deed of company arrangement is generally rehabilitation.

59 Courts in Australia have, since 1893, seen fit to exercise the power to order examination in relation to voluntary winding up in the same way as they exercise it in relation to court ordered winding up. That long-standing and uncontroversial practice warrants, to my mind, the conclusion that the examination power is of a judicial character when deployed in support of a voluntary winding up context just as it undoubtedly is in the context of a winding up by the court. Given the clear conceptual similarity, as to process and, between voluntary winding up and implementation of a deed of company arrangement, there is an added reason, based in history, for characterising the examination power in the same way in relation to administration under a deed of company arrangement. 60 I was invited by counsel for Ms Ariff not to follow Re Sons of Gwalia Ltd; Ex parte Love. That course is open to me only if I am persuaded that the decision of Le Miere J is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485. I am not so persuaded. His Honour was, in my respectful opinion, correct in his conclusion that the power of the court under Part 5.9 to order that a person be examined about the affairs of a company subject to deed of company arrangement is a judicial power because auxiliary or incidental to the court's judicial function of exercising, in various ways, supervisory jurisdiction in relation to the particular form of Chapter 5 administration to which the company is subject while the deed of company arrangement continues in force.

61 It follows that Ms Ariff would not have succeeded in making good her second attack on the examination summons if, contrary to my conclusion already stated, the first attack had not been successful.

62 The orders are as follows: 1. Order that the summons issued under s 596B of the Corporations Act 2001 (Cth) upon the application of Ian Kim Seng Fong summoning Yazni Ariff for examination be discharged.

2. Order that each order for the production of documents made against Yazni Ariff on the application of Ian Kim Seng Fong be discharged.

3. Order that the application of Ian Kim Seng Fong (being the application for orders to the effect that examination of Yazni Ariff pursuant to the said summons proceed and that documents be produced by her) be dismissed.

4. Order that Yazni Ariff's costs of the applications of herself and Ian Kim Seng Fong determined by me this day be paid by Ian Kim Seng Fong.

30/06/2010 - Typo - Paragraph(s) In paragraphs 26, 27 and 30 "(d)" corrected to "(e)" 30/06/2010 - misspelling of "Yazni" - Paragraph(s) Orders on front sheet.Orders in paragraph 62. 06/07/2010 - Typo - Paragraph(s) "(d)" changed to "(e)" in paras 4 and 19.

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