Section 672DA(8) makes provision for the giving of a copy of the register or any part of it to a person on request.
22 Both s.271(3) and s.672DA(7) obviously confer rights of inspection, as distinct from merely saying who is to pay to inspect and who may inspect free of charge. Sections 271(4) and 672DA(8) create a different kind of right, namely, a right to be given a copy. There is no corresponding right in relation to the record with which s.587(14A) is concerned. But a comparison of s.597(14A) with ss.271(3) and 672DA(7) leaves no doubt in my mind that it, like them, creates rights of inspection.
23 With one exception, none of the cases to which I have been referred supports the construction for which the liquidator contends. Rather, all, to my mind, tend against the correctness of that construction. The exception is the Emanuel Investments case but I am bound to say in relation to it that I consider the submissions made by Mr Lockhart to be compelling. The reference in Emanuel Investments to the power to give directions under s.596F as an instrument in the hands of the court for the prevention of injustice is no doubt apposite. But that, to my mind, says nothing about the interaction between s.596F(1)(e) and s.597(14A). That interaction is entirely a matter of statutory construction. To regard the s.596F(1)(e) power as not available to preclude or curtail the right to inspect given by s.597(14A) is not to treat s.597 "as an island when it comes to the rights of interested parties" or to say that there is "no work for … s.596F(1) to do". Once the distinction emphasised by Santow J is accepted, there is ample work for s.596F(1) to do in relation to "records of the examination" even allowing for the fullest operation of s.597(14A).
24 Nor can it be accepted that there is a legislative intention that examinations of examinable persons are to take place "in the context of them having no prior knowledge of earlier examinations". On the contrary, the clear legislative intention is that any examination is to take place in public unless "special circumstances" produce a need, recognised by the court, for it to be in private: see s.597(4). The circumstances that several persons might be examined in relation to the affairs of a single company and that the examinations will, of necessity, occur in sequence is an obvious and expected by-product of the statutory scheme. That, of itself, could not possibly represent "special circumstances" indicative of a need for any of the examinations to be in private, any more than the possibility of attendance by representations of the press for the purposes of news reporting in the ordinary course could be seen to be a "special circumstance": see Jagelman v Sheahan (as liquidator of Moage Ltd) (2002) 41 ACSR 487.
25 In my opinion, the provisions in question must, despite what is said in the Emanual Investments case, be approached on the basis that s.597(14A) is a legislative directive that every person who wishes it is to have the ability to inspect any written record of question and answers made pursuant to s.597(13). A fee must be paid where the person desiring to inspect is not within s.597(14A)(a); otherwise, inspection is free of charge. There is also, in my view, a manifested legislative intention that the ability to inspect is not to be curtailed through an order under s.596F(1)(e), even though such an order may preclude access to the whole or any part of the remainder of the "records of the examination" in the wider sense referred to by Santow J; and this is so whether or not the examination is conducted in private or in public.
26 It may be said that this approach produces the anomalous or undesirable consequence that, if, for reasons judged sufficient for the purposes of s.597(4), the court orders that the whole or some part of the examination be held in private, the unavailability of s.596F(1)(e) as a means of denying the right to inspect a s.597(13) record of questions and answers means that the decision that the examination be in public is undermined. It is to be remembered, however, that the court is not compelled to make an order under s.597(13) that questions and answers be recorded in writing. Its power to make such an order is discretionary. This leads on to another point I consider to be of particular importance.
27 In drawing the valid distinction between a written record made under s.597(13) and the "records of the examination" referred to in s.596F(1)(e) and observing correctly that the latter comprehends the former, Santow J had no need, in the New Cap Reinsurance case, to mention another species of documentary recording expressly contemplated by s.597. I refer to "any transcript of an examination of a person that is authenticated as provided by the rules". Section 597(14) refers to such a transcript as well as to "any written record of an examination so signed by a person". It is thus clear that there may be either a written record made under s.597(13) or a "transcript" of the kind mentioned in s.597(14) - or, indeed, there may be both. The reference to a "transcript", it seems to me, acknowledges that, as was recognised by Campbell J in Re Doran Constructions Pty Ltd (2002) 194 ALR 101, an examination under s.596A is a proceeding in the court.
28 Where a transcript of an examination is made and authenticated as contemplated by s.597(14) but there is no order under s.597(13) (and accordingly no written record of questions and answers made pursuant to an order under s.597(13)), s.597(14A) does not create any right to inspect the particular form of record of the examination, being the transcript. A transcript of the kind mentioned in s.597(14) is therefore amenable to directions under s.596F(1)(e) in a way that a record made pursuant to an order under s.597(13) is not. That is a circumstance that would no doubt be relevant to a decision as to the more appropriate way of proceeding in a particular case in which the existence of the statutory rights of inspection created by s.597(14A) gave cause for concern.
29 The distinction between a written record made under s.597(13) and a transcript of an examination referred to in s.597(14) was noted by Drummond J in Southern Cross Airlines Holdings Ltd v Arthur Andersen & Co (1998) 28 ACSR 455. After referring to orders made by the Supreme Court of Queensland in connection with an examination, Drummond J said:
"It can be seen that Byrne J did not give any direction that a transcript be kept of the examination, although it is apparent that it was the intention of the liquidator, and the understanding of the judge, as reflected in his orders, that a transcript would be made. Pt 5.9 Div 1 the Corporations Law does not contain any general provision that deals with the making of a transcript of the examination. Section 597(13) empowers the court to make an order for the making of a special kind of transcript, ie, one recorded in writing and signed by the examinee, and s 597(14) regulates the admissibility in any legal proceedings against the examinee of that special transcript and also "any transcript of an examination of a person that is authenticated as provided by the rules", ie, by the transcript recorder or by any person present at the examination. See r 81(2) the Corporations (Queensland) Rules 1993. A person over whom the liquidator has no control, eg, the judicial officer before whom the examination is conducted, can therefore authenticate a transcript not specially ordered under s 597(13), with the result that it will be admissible in evidence in any legal proceedings brought by anyone against the examinee. The transcripts here in question were prepared pursuant to a private arrangement between the liquidator and the State Reporting Bureau. In my opinion, Pt 5.9 Div 1 leaves it to the person conducting the examination to determine whether a transcript of the examination is to be kept, in the absence of the court exercising its powers under s 597(13). In deciding whether to have a transcript made, the examiner will no doubt be guided by the wishes of the liquidator or other person at whose behest the examination was ordered."
30 Drummond J then referred to the scope and effect of s.597(14A):
"Section 597(14A) provides for the inspection, including public inspection, of any special transcript directed to be made by the court under s 597(13). But there is no provision that deals with whether an ordinary transcript is to be open to inspection by the public or by any particular person or whether it can, in particular circumstances, be kept confidential by the liquidator or other person who invokes the power of compulsory examination.
Byrne J exercised the power conferred by s 596F(1)(e) to give directions about access to the transcripts: he gave a direction for the release by the liquidator of a copy of the transcripts of the examination to the ASC and a direction that the ASC should itself be permitted to disseminate the transcript to the Commonwealth Director of Public Prosecutions, on certain terms."
31 His Honour thus accepted without comment or question the proposition that the court may make s.596F(1)(e) directions in order to allow and regulate access to transcripts of the kind referred to in s.597(14), whereas a record of questions and answers made in conformity with a s.597(13) order attracts a right of "inspection, including public inspection". That analysis is consistent with the construction of the provisions I consider to be correct.
32 Because of the view I take about the scope and operation of the provisions in question, I will not make any order under s.596F(1)(e) that purports to restrict access to any written record of questions and answers made pursuant to an order of the court under s.597(13). I therefore approach paragraphs 2A and 3 of the amended interlocutory process as if they omitted references to all such s.597(13) records as may actually exist in the particular cases at hand, but extend to such transcripts of the kind referred to in s.597(14) as may exist as part of the "records of the examination" referred to in s.596F(1)(e). The question then becomes whether the court should, in its discretion, make an order that denies the world at large access to the records of the examinations that have already been completed (except for the part of each to which s.597(14A) applies), otherwise than in accordance with some future order of the court; or, in the alternative, an order that denies such access to the particular persons identified as the "foreign directors".
33 There is, in reality, no basis for either such order, in the sense that it is not an order that could usefully be made. The only relevant right the foreign directors or anyone else can assert is the s.597(14A) right to inspect such written records of questions and answers as may have been made pursuant to s.597(13) orders. No right of inspection or access is conferred upon the foreign directors or any other person in relation to such other documents (if any) as constitute the balance of the records of the examination referred to in s.596F(1)(e), including any "transcripts" of the kind referred to in s.597(14). I am of the opinion that all such records held by the court are within Part 65 rule 7(1) of the Supreme Court Rules 1970:
"A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court."
34 While an examination summons, as such, may not be an originating process (Re Austral Oil Estates Ltd (1986) 7 NSWLR 440), the examination itself is, in accordance with the decision of Campbell J in Re Doran Constructions Pty Ltd (above), within the concept of "proceedings". I quote his Honour's summary of submissions on behalf of the examinee in that case, which submissions he ultimately accepted:
"The examinee says that 'proceedings' , while not defined in the Evidence Act 1995 , nor in the Supreme Court Act 1970 , or in the Supreme Court Rules, is a word applicable to a liquidator's examination. In Proust v Blake (1989) 17 NSWLR 267 Samuels JA (with whom Mathews J agreed) said that, though the word 'proceeding' is not defined in the Supreme Court Act 1970 ,
'…it is used very generally in the latter Act to cover the whole variety of forensic exercises which may occur in the Court…it may well be that the word "proceedings" is a protean one which will take its meaning from its context.'
He points out that in Cheney v Spooner (1929) 41 CLR 532 at 537 Isaacs J and Gavan Duffy J held that a liquidator's examination took place in a 'proceeding' , namely the winding up. Starke J approached the matter differently, saying at 538-539:
'A civil proceeding, I apprehend, includes any application by a suitor to a court in its civil jurisdiction for its intervention or an action. The application for the issue of a summons in this case was such a proceedings.' (see also Blake v Norris (1990) 20 NSWLR 300 at 306 per Smart J, Fiorentino v Irons (1997) 79 FCR 327 at 331)
Most relevantly, the examinee says, in In Re: Interchase Corporation Limited (1996) 68 FCR 481 at 487, Kifel J held that an examination under section 596B of the Corporations Law was a 'proceeding' in a Federal Court, within the meaning of section 4(1) of the Evidence Act 1995 (Cth)."
35 It follows that the whole of the records of an examination held by the court are documents "in any proceedings" and that, except to the extent that a right of inspection arises under s.597F(14A) as already discussed (being a right created by Commonwealth law), neither the foreign directors nor anyone else may have access to any part of those records without the leave of the court given under Part 65 rule 7(1). There is accordingly no need for that position to be re-stated in any further direction or order.
36 There is, however, one minor consequential respect in which I consider a direction to be appropriate. In order to accommodate in an unambiguous way the legitimate interest of the liquidator in knowing of and, if thought fit, opposing any such application for leave under Part 65 rule 7(1), there could be a direction to the effect that, if by any such application, inspection is sought of any document in any of the relevant examination proceedings, not being a written record of questions and answers made pursuant to an order under s.597(13), the application shall not be determined unless the person by whom the application is made satisfies the court that the person gave to the liquidator seven days prior written notice of the person's intention to make the application. Such a direction does not encroach upon the s.597(14A) right and is therefore permitted by s.596F(1)(e).
37 Whether, in the particular circumstances, such a direction will serve any useful purpose from the liquidator's point of view (in that it will do nothing to prevent inspection by the foreign directors of such records of questions and answers made pursuant to s.597(13) orders as actually exist) is a matter for the liquidator. He may, if he wishes, approach my Associate (with notice to the foreign directors) within the next fourteen days with a view to having the matter restored to the list for the purpose of formulating a direction of the kind I have outlined. The particular orders sought in the further amended interlocutory process (see paragraph [2] above) are, however, refused.
38 As for costs, I am satisfied that the liquidator has acted appropriately and responsibly in making this application. He should therefore have his costs out of the assets of the company as an expense of the winding up. For reasons discussed in Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681, I am of the opinion that costs may not be awarded in favour of persons granted leave under rule 2.13 to be heard without becoming parties - or, at all events, that they should not be awarded costs in the absence of extraordinary circumstances. There being no extraordinary circumstances here, there will be no order as to the costs of the foreign directors.
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