Cadbury Schweppes Pty Limited v Amcor Ltd

Judgment 1HER HONOUR : On 25 May 2011, I published my reasons for judgment ( [2011] NSWSC 490) on an application to stay certain examination summonses and orders for production that had been issued at the instance of Messrs Ozzem Kassem and Bruno Secatore (in their capacity as liquidators of Clarecastle Pty Limited (in liq)) against Mr Ross Seller and Mr Patrick McCarthy (as well as an order for production of documents served on Grant McKenzie Pty Ltd) in relation to the examinable affairs of Clarecastle Pty Ltd (in liq). 2I refused to stay the examination summonses (or the orders for production) but I considered it appropriate for orders to be made in relation to the holding of the examinations in private and for the preservation of the confidentiality of the transcript of those examinations until the hearing of criminal proceedings against the examinees which are listed to commence in October this year. I gave the parties an opportunity to make submissions as to the form of those orders with a view to ensuring the privacy of the examinations pending the criminal proceedings. 3When the matter came back before me on 27 May 2011 there was agreement as between the liquidators and the Applicants as to various orders to give effect to my reasons but there was no agreement in relation to two matters: (i) the ambit of the orders for production (Mr Castle, for the Applicants, seeking that those orders be limited in two respects - first, to exclude production of the Crown brief in the criminal hearings and, secondly, to require the production of documents only in relation to three specific factual issues); and (ii) who should bear the costs of the application as between the Applicants and the liquidators. 4I heard brief oral submissions on those matters and gave leave for written submissions to be served on one particular issue (the interaction between the implied undertaking and the orders for production) that being raised by Mr Castle as supporting the application for the exclusion of production of the Crown brief. 5I have considered the supplementary submissions served on 1 June 2011 by the liquidators in relation to the import of the implied undertaking, and the submissions served in reply on 3 June 2011 by Mr Castle, and now make final orders in relation to the stay application determined on 25 May 2011. The relevant examinations are scheduled for 16 and 17 June 2011, hence the need for any restriction on the scope of the Orders for Production to be determined as soon as possible. 6The background to the matter is set out in my earlier reasons and I do not repeat that here, save to record again that Mr Seller is the solicitor who had advised Clarecastle in relation to one of the transactions the subject of the liquidators' investigation into Clarecastle's affairs (the Scotch Whisky Scheme); Grant McKenzie Pty Limited is a firm that had entered into a management agreement with Clarecastle in respect of that transaction; Mr McCarthy is the sole director of Grant McKenzie and the person through whom (according to the liquidators' enquiries) communications in relation to the Scotch Whisky Scheme on behalf of Clarecastle with other participants occurred; and that the relevant events in which those parties were involved date back to early 2001. Where applicable, I use the same abbreviations adopted in my earlier reasons. (i) Should there be a limit placed on the orders for production? 7The transactions involved in the Scotch Whisky Scheme have been the subject of a lengthy investigation by the Australian Tax Office and the Australian Crime Commission (and that investigation has involved enquiries through regulatory bodies overseas, the transactions in question having involved a number of entities based overseas). 8The orders for production seek a broad range of documents over the period from 1 January 2001 to 5 April 2007, recording evidencing or relating to Clarecastle's interest in the Scotch Whisky Scheme, the value of that interest, communications with Chambers Finance or Speyside Distillery Co Ltd regarding that interest, communications between Clarecastle and Grant McKenzie with respect to that interest, the Management Agreement with Grant McKenzie (including entry into it and its operation) and the loan agreement with Chambers Finance. 9What is sought by the limitation on the orders for production now propounded by Mr Castle are limitations broadly in two respects: first, a limitation as to the general scope of the orders and, second, a limitation by reference to the source of the documents.