Bufalo Corporation Pty Ltd (No 2) [2002] VSC 450 (25 October 2002)

Supreme Court of Victoria|2002-10-25|Before: Hansen J

The application for the alternative relief must also fail. That is for the reasons already given, and having regard to all the circumstances. But there is a further reason why it is not appropriate to grant the alternative relief. The alternative relief lies at the heart of the area of discretion of the Master, which is to be exercised in light of the relevant circumstances as they may be when the matter is before him. They are not the subject of an application under s 596F(1)(a).

The appropriate course is for all relief sought by Primelife to be refused. The examination process should resume before the Master and be dealt with in accordance with law and with such assistance as these reasons may provide.

Counsel for the liquidator suggested that it might conduce to the smooth conduct of the examination if I was to refer to the Master the power which exists under s 596F(1)(a). I cannot do that. The schedule to the Corporations Law Rules refers to a master the power under s 596F(1)(b)-(g), but not para (a). Under Rule 16.1(3) a judge may refer an application to a master for hearing and determination. An application is not a power. A reference of power is a matter for the judges in the exercise of their rule-making power.

I should mention that at the outset of his submissions, counsel for the liquidator submitted that the application was an appeal, in effect, from the Master's ruling and as such was incompetent. See the doubts on the matter of appeal from a master's ruling expressed obiter by Beach J in Re National Safety Council of Australia Victorian Division (in liq); re Friedrich.[24] In the present case the answer to counsel's submission is that the primary application for relief is based on s 596F(1)(a). As the Master does not have power to make a direction under that provision, and as the power may be exercised by a judge "at any time", it is open to a party to apply for a direction under para (a) in the course of the examination process. Strictly speaking, the application is not an appeal, and cannot be, because the Master has no power under para (a). Nor did he purport to exercise such power. In the circumstances it is not otherwise necessary to consider counsel's submission.

I shall hear counsel on the terms of the orders and costs.

[1] Bufalo Corporation Pty Ltd [2002] VSC 107.

[3] Supreme Court of South Australia, Bleby J, 6 May 2002, BC 200202329.

"Counsel for both parties accepted that there was no difficulty, as a matter of principle, about legal professional privilege being available in the course of such an examination, in appropriate circumstances (Re Transequity Ltd (in liq) [1991] TASSC 31; (1991) TasR 308; Re BPTC Ltd (in liq) (1992) 7 ACSR 539; Re Compass Airlines Pty Ltd (1992) 35 FCR 447)." [17]

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