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).