E CONSIDERATION
31 There is no controversy as to the satisfaction of the procedural and substantive requirements stipulated in Section C above.
32 I am satisfied that Mr Bradley duly affected the practical matters in Art 15 of the Model Law, as modified by s 13 of the Act. Mr Bradley swore an affidavit outlining litigation involving Astora in Australia (at [48]-[53]) and in other jurisdictions (at [54]-[58]); annexed the orders of the Bankruptcy Court dated 18 August 2022, relevant sections of the hearing transcript for the 18 August 2022 hearing, and other relevant court documents; and deposed that he was not aware of the appointment of a receiver, or a controller or managing controller within the meaning of s 9 of the Corporations Act.
33 Further, Mr Bradley has complied with div 15A of the Rules. First, the originating application is in the form required by r 15A.3(1). Secondly, the affidavit of Mr Cal Anthony Diolúin, affirmed 24 October 2022, evinces that Mr Bradley met the notification and publication requirements provided for by the orders of this Court. Justice Halley exercised the discretion in r 15A.6(1) to dispense with the requirement in r 15A.3(4)(a), and made orders setting out a customised notification and publication regime. This required Mr Bradley to give notice of the application and the hearing date to certain persons, and to publish the notice in The Australian and the Australian Financial Review, within 20 days of the making of the orders. When this matter first came before me on 7 October 2022, I listed the application for final hearing and varied the orders of Halley J to provide for notice to be given and published on or before 12 October 2022. This was done.
34 Finally, as to Art 17, the five matters outlined above (at [14]) have been established.
35 First, the Astora Chapter 11 Proceeding is a foreign proceeding within the meaning of Art 2(a) of the Model Law. One might have thought this was obvious but, perhaps superfluously, Mr George Panagakis, an American lawyer, affirmed an affidavit representing his view of United States law. In any event, I am satisfied that the Astora Chapter 11 Proceeding is a foreign proceeding because:
(1) it is a judicial proceeding, subject in all respects to the supervision of the Bankruptcy Court;
(2) it is a collective proceeding, in that it considers the rights and obligations of all creditors: Re Betcorp Limited 400 B.R. 266 (Bankr. D. Nev. 2009) (at 281 per Markell J) and it was instigated to restructure the debtor's liabilities for the benefit of all of the creditors, and all creditors are entitled to participate and vote in relation to a proposed "Plan of Reorganisation";
(3) it is a proceeding in a foreign state, being the United States;
(4) it is being conducted pursuant to "a law relating to insolvency"; UNCITRAL's Report of the Working Group on Insolvency Law on the Work of its Nineteenth Session, UN Doc A/CN.9/422 (25 April 1996), addresses this phrase (at 12 [49]), opining that it is "sufficiently broad so as to encompass insolvency rules irrespective of the type of statute in which they might be contained": see also In re Stanford International Bank Ltd [2009] BPIR 1157 (at [41] per Lewison J); Chapter 11 is a comprehensive, federal legal framework for the purpose of reorganisation and liquidation; and
(5) the assets and affairs of the debtor during the proceeding are subject to control or supervision by the Bankruptcy Court.
36 The second, third and fourth elements are also uncontroversially met: Mr Bradley is a foreign representative for the purposes of Art 2(d); the application satisfies the procedural requirements in Art 15(2); and it has been submitted to a competent court pursuant to Art 4 and s 10 of the Act (being this Court).
37 As to the fifth, the Astora Chapter 11 Proceeding is underway in the state where Astora has its centre of main interests, and so should be recognised as a foreign main proceeding. For the reasons canvassed by Halley J, there is nothing to displace the presumption that Astora's centre of main interests is the United States. If there was any doubt, the following factors buttress this conclusion:
(1) in evidence is the "Amended and Restated Limited Liability Company Agreement of Astora Women's Health, LLC", cl 21 of which states that the agreement is governed by the law of the State of Delaware; the agreement provides (at cll 10-12) that Astora is to be managed by Endo; Endo is a Delaware-incorporated entity with the same registered office as Astora, and its two directors are both based in Pennsylvania and Astora's officers are also appointed by Endo (see cl 12);
(2) Astora's seven appointed officers are based in Pennsylvania;
(3) Astora does not have business premises, staff or any business operations outside of the United States;
(4) Astora is not and has never been managed from Endo's group head office in the Republic of Ireland; and
(5) Astora's only business is apparently defending litigation, conducted from its registered office in Delaware.
38 Finally, as to the public policy exception in Art 6, I raised at the hearing the relevance of the fact that a company previously supplying pelvic mesh implant products in this country (and facing a class action as a consequence), is now apparently without assets. If there was a basis for suspecting that transactions denuding Astora of assets had occurred with the intent to defraud or defeat its creditors, then it may have been appropriate to appoint a contradictor, and issues of public policy would arise. But absent broad generalities, the evidence of why Astora is now a litigation defence shell is silent. At present, any concern as to these developments could not be based on anything but speculation, and this recognition proceeding is an inapt vehicle for any appropriate investigations and, to the extent such investigations are relevant, they will be matters for the foreign proceeding.
39 In the circumstances, I accept that: first, Mr Bradley is a foreign representative of Astora within the meaning of Art 2(d); secondly, the Astora Chapter 11 Proceeding is a foreign proceeding pursuant to Art 17(1); and thirdly, the Astora Chapter 11 Proceeding is a foreign main proceeding within the meaning of Art 2(b) for the purposes of Art 17(2)(a). I will make orders to this effect, as proposed in the originating process (at [1]-[3]).