Capital Options (Aust) Pty Ltd v Hazratwala

The low hanging fruit in terms of disposition 22 Voluminous material was filed and many authorities cited concerning the question of whether Capital Options was out of time for filing its appeal or application for leave to appeal and whether an extension of time should be granted. I can cut through this. 23 As I have found that her Honour's decision was interlocutory rather than final, the reasons for which I will discuss in a moment, the notice of appeal is incompetent. So, extending time to file the notice of appeal would therefore be an exercise in futility. 24 Now given that a leave to appeal application was necessary but that an extension of time was required to file such an application, I have decided to grant that extension of time for the following reasons. 25 First, the reason why an application for leave to appeal was not filed within time was because Capital Option's solicitor, Mr Geoffrey Senior failed to appreciate that leave was required and wrongly assumed that there was an automatic right of appeal. I should also say as a side note that I reject Mr Senior's self-justifying but underwhelming attempt to blame former counsel for Capital Options in the case for Mr Senior's error, which he has persisted with before me. 26 Second, the delay in filing such a leave application due to Mr Senior's error is short. Moreover, no relevant prejudice is suffered by the respondents if I extend the time. 27 Third, I cannot say that the application for leave to appeal is utterly devoid of merit. In the circumstances, it is preferable to assume in favour of Capital Options for the moment that its challenge is not utterly devoid of merit and to proceed to deal with the substance of the leave to appeal question. 28 For these reasons I have granted the necessary extension of time within which to seek leave to appeal. Let me turn then to the main questions.

Is her Honour's judgment interlocutory or final? 29 In my view her Honour's judgment given on 15 May 2023 was interlocutory and not final in the relevant sense. Accordingly, leave to appeal is necessary to challenge that judgment (see s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). 30 Her Honour's judgment does not finally determine the rights of the parties in a relevant sense when one considers the legal rather than the practical effect of her judgment (see Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246 at 248 per Gibbs CJ). 31 First, Capital Options, providing that it can again satisfy the "eligible applicant" requirement, is able to bring a new application seeking the issuing of summonses provided of course that any new application is not an abuse of process. The fact that it can make a fresh application, assuming that it can again satisfy the standing requirement, is reason enough to characterise her Honour's decision as interlocutory. 32 Second, there is nothing in Capital Options' point that one of her Honour's orders was a dismissal of the originating process that had been before the Registrar, and that what was being dismissed demonstrated the "finality" of her Honour's orders. The question of whether a judgment is final or interlocutory depends upon the nature of the judgment and not the form or nature of the application made to the Court. So much is apparent from the discussion of both Gibbs CJ and Mason J in Carr. Other points were made by Capital Options that her Honour was "functus officio" and that there was nothing left to decide other than as to costs. But these "finality" ideas misconceived the nature of the test to be applied as to the characterisation of her Honour's 15 May 2023 judgment, and in any event did not engage with the fact that a new application could be made if the standing requirement was satisfied. 33 Third, in terms of the requirement to finally dispose of rights, what was the right being exercised here by Capital Options which it was said was finally determined by her Honour's judgment? A right to apply to have summonses for examination issued? But to so describe it is to demonstrate its procedural nature. Let me elaborate a little. 34 Sections 596A and 596B and summonses for examination issued thereunder do not determine or require adjudication of substantive rights and obligations as such. They provide a procedural mechanism for bringing a person before the Court for examination. Moreover, the examination concerns the procuring of information about the examinable affairs of a corporation, which information may then be used in other proceedings involving substantive rights or obligations. The "resolution" of the summonses, and any prior application under ss 596A and 596B, is the holding of the relevant examination. And the "resolution" of the examination is the procuring of information. But none of this is the resolution or determination of substantive rights and obligations as such. Now true it is that Capital Options may have the right to apply for summonses for examination if it is an "eligible applicant". And true it is that the issuing of a summons directed to a person has coercive effect. The examinee must attend Court at the appointed time to be examined. But could it be said that the examinee's right is being infringed? I doubt it. Rather, a duty is being imposed upon him. But this is little different to that person being subjected to a subpoena (Shapowloff v Stirling Henry Ltd (in liq) [1972] 2 NSWLR 691 at 693 per Jacobs P). So, whether one views the matter from the perspective of the applicant for the summons for examination or from the perspective of the examinee, one is concerned with a procedural mechanism for the gathering of information. None of this concerns the adjudication or determination of substantive rights or obligations one way or the other concerning either the applicant for the summons or the proposed examinee. 35 Fourth, if it is necessary to say so, the authorities dealing with analogous scenarios all fortify my conclusion as to the interlocutory nature of her Honour's judgment; see for example Kassiou v Heard [2017] FCA 425 at [15] to [41] per Charlesworth J, Jones v Porter [2022] FCA 1219 at [21] to [38] per Cheeseman J and Gerah Imports Pty Ltd v The Duke Group Ltd (in liquidation) (1993) 61 SASR 557 at 561 per Olsson J.

Leave to appeal 36 The test to apply to determine whether to grant leave to appeal from an interlocutory decision is not in doubt; see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 and 400 per Sheppard, Burchett and Heerey JJ. And it is two pronged. First, is the judgment in issue attended with sufficient doubt such as to warrant its reconsideration? Second, if so, would substantial injustice result if leave to appeal was refused, assuming the judgment to be wrong? 37 For simplicity I have expressed these as two separate questions but in reality they may inter-relate. For example, the higher the doubt relevantly raised under the first limb, the more benign one may view the establishment of the second limb. Alternatively, if the substantial prejudice is very high, the sufficiency of doubt necessary to satisfy the first limb may be viewed more benignly. 38 Moreover, each limb of the test is context and case specific. The content and application of each limb will depend upon the rights being exercised or infringed and the nature of the decision under review. So, orders concerning matters of practice and procedure are to be dealt with differently to orders affecting substantive rights. So in Décor it was said (at 399 and 400): In our opinion, the principles discussed in Niemann and in the other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice - concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177) a strong warning that "a tight rein" should be kept on appeals - and an interlocutory decision determining a substantive right - where leave will more readily be granted. Although the judgments of Jordan CJ in Re Will of Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 and of the majority of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra) are not concerned with the question of the granting of leave, they emphasise this distinction, which was applied to the granting of leave in Ex parte Bucknell (1936) 56 CLR 221 and Sharp (supra). In the present case, the interlocutory decisions in respect of which leave is sought are certainly attended with difficulty, and their correctness is open to dispute. If they are wrong, significant consequences will be suffered by the applicants. We regard this as a clear case for the grant of leave. 39 Now one could treat her Honour's judgment as perhaps involving a matter of practice and procedure. And certainly some of her Honour's reasoning could be so viewed concerning the breach of a duty of disclosure. But in terms of her Honour's operative orders I would prefer not to use such a characterisation.

Is her Honour's decision attended with sufficient doubt? 40 Now her Honour set aside the summonses issued under ss 596A and 596B of the Act by the Registrar, which summonses were obtained by Capital Options in its capacity as an "eligible applicant" having been authorised as such by ASIC; see the s 9 definition, sub-paragraph (e). 41 In her Honour's view, the summonses were obtained as a consequence of Capital Options by its director having misled the Registrar through non-disclosure in the application for leave for its director Mr Bax, a former solicitor, to represent the company, and through non-disclosure in the applications for the summonses. 42 Now the findings of fact in her reasons about that non-disclosure are not challenged in the proposed appeal. Rather the challenge is to her Honour's evaluation. But to obtain leave to appeal, Capital Options must show a sufficiently arguable error in that evaluation. 43 But in my view her Honour's decision is not attended with sufficient doubt. 44 Capital Options has not demonstrated any error in the principles applied by her Honour justifying that summonses, even in relation to the "mandatory" provisions of s 596A, can be discharged if obtained through non-disclosure of material facts or where there has been an abuse of process or where the summonses and consequent examinations have been for a collateral purpose. 45 Nor has any error been identified in the factual findings that material non-disclosure occurred. As her Honour held, the non-disclosure on the application for Mr Bax to represent Capital Options before the Registrar was on its own sufficient to discharge the orders. 46 Similarly, no serious case has been made against the finding by her Honour that material withheld by Capital Options was relevant to the Registrar's decision to issue the summonses. 47 The summonses related to the affairs of Weststate Consortium Pty Ltd (in liquidation). Capital Options factors debts. Capital Options acquired an alleged debt owed by Weststate Consortium. The respondents include directors of Weststate Consortium, being Dr Hazratwala, another Dr Hazratwala and Dr McEwen, and a non-director advisor to the directors, being Mr Kippin. 48 Capital Options sued Weststate Consortium for the alleged debt in District Court proceedings and sought summary judgment, at the hearing of which application the District Court proceedings were stayed. 49 Weststate Consortium entered liquidation on 6 October 2020. The liquidator of Weststate Consortium then issued a report which contained opinions about a relevant debt assignment and a share assignment, to the effect that there was no identifiable claim worth pursuing in relation to those matters, and recorded that ASIC had investigated the conduct of the officers of Weststate Consortium and did not propose to investigate further. 50 Now the Registrar who granted the summonses for examination granted Mr Bax leave to appear on behalf of Capital Options. But it was not disclosed to the Registrar that Mr Bax was the sole shareholder and sole director of Capital Options. And it was not disclosed that Mr Bax's application for readmission as a solicitor in 2020 was dismissed in 2021 (Bax v Legal Practitioners Admissions Board [2021] QCA 93). Holmes CJ said in that case (at [70] and [71]): The form of the applicant's counsel's submissions suggested an approach of focusing on each respect in which his conduct was called into question and considering whether it would of itself warrant a refusal of admission. The proper and rational approach, however, is to consider those issues not severally, but collectively, as they reflect on the applicant's suitability. Having regard to the accumulation of matters, this Court can have no confidence that the applicant has developed any clear understanding of proper conduct. I am not satisfied that he has discharged the onus on him of showing that he would not again engage in conduct of the kind which caused his striking-off. Nor do I consider that the public interest and the interests of the profession would appropriately be safeguarded were the applicant to be readmitted, whatever conditions might be applied. Indeed, it seems to me that if the public were made aware that an applicant were readmitted in circumstances where he had displayed an indifference to requirements of the Corporations Act and some of his obligations as a tax agent; had not only failed to follow proper procedure in the collection of evidence, but apparently had been oblivious to the need to do so; had generally behaved in an unforthcoming way in his dealing with a regulatory authority; and had been unable to grasp what it was that was required of him, notwithstanding the clear statement of the Court in his presence; their confidence in the profession would in fact be eroded. 51 Further, it was not disclosed that Mr Bax had been refused leave in 2020 to appear in the District Court proceedings on the hearing of Capital Options' application for summary judgment on the case it was now seeking examination summons in respect of and that the action was stayed on the basis that that court would not give Mr Bax leave to appear for Capital Options. 52 Further, the nature or existence of the District Court proceedings was not disclosed. 53 Further, the liquidator's report about the relevant claim was not disclosed. 54 Now it is not in doubt that a party who is essentially proceeding ex parte must bring forward all facts and circumstances which are material to whether to grant the orders sought and which are known to the party, irrespective of whether the party in fact perceived them to be important or not. Further, materiality is not to be confined to the substantive merits of the application but may also go to anterior questions of standing, jurisdiction or a right to be heard. 55 Further, if this duty is breached and the orders are made, the orders should be discharged without any express justification being necessary to establish a causal connection between the breach of duty and the ex parte orders made. A presumption of material contribution can be made, and such a presumption is consistent with the need for specific and general deterrence against a breach of duty of such fundamental importance. 56 Of course, if the orders are discharged, that does not deny that the judge so discharging may consider the matter afresh and make new orders on the material then known and belatedly disclosed, unless the earlier non-disclosure has some other continuing significance in terms of the merits of the application at this later point. 57 In the present case, there is little doubt that Capital Options engaged in various acts of non-disclosure before the Registrar, as recounted in some detail by her Honour. The non-disclosure went both to the question of Mr Bax representing Capital Options and also to more substantive matters. 58 Now true it is that her Honour could have discharged the summonses and considered the matter afresh. But the difficulty is that the non-disclosure and other matters had broader significance beyond the mere non-disclosure per se. 59 Her Honour also found that there had been an abuse of process and that the summonses had been sought for a collateral purpose. So, first artificially discharging the summonses and then reconsidering the matter afresh would have produced no different result given the vices of abuse of process and collateral purpose that her Honour found. Capital Options' point is little more than a promotion of form over substance. 60 Now her Honour said (at [42], [43], [47] and [48]): In exercising the discretion to permit Capital Options to proceed with its application other than by a solicitor, and in granting Mr Bax leave to appear for Capital Options, the Registrar was not made aware of several of the various matters in relation to Mr Bax outlined above, from which it could reasonably be concluded that Mr Bax was not a proper person to conduct the proceedings on behalf of Capital Options: AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878 at [34] per Collier J. The failure of Capital Options, through Mr Bax, to disclose those matters is sufficient to discharge the Orders. There were, however, other undisclosed matters going beyond the issue of leave to appear and which touch upon whether the summonses ought to have issued at all. … Relevant to the Court's review of the exercise by the Registrar of the power to issue summonses to the discretionary examinees, the following matters were not disclosed on the ex parte application: (1) the nature or existence of the District Court Proceedings; (2) the BDO Report. The failure of Capital Options, through Mr Bax, to disclose those matters is sufficient to discharge the summonses directed to Messrs Kippin and Falconieri. 61 But she then went on to say (at [49]): Further, non-disclosure of the nature and existence of the District Court Proceedings and the BDO Report taints the summonses directed to both the mandatory examinees and the discretionary examinees. That is because perusal of that material would have revealed to the Registrar that the predominant purpose of the examinations sought under both s 596A and s 596B was collateral to the external administration. 62 And in elaboration on this further dimension to the problem, her Honour said (at [53] and [54]): In the present case, particularly having regard to the pleadings in the District Court Proceedings (instituted more than three years ago), which make a simple claim in debt, and the content of the BDO Report, which concludes there are no viable claims in respect of either the transfer or the assignment, that no dividend is likely to be declared, and that ASIC has concluded its investigations into the officers of Consortium and is not investigating further, it appears that the predominant purpose of the examination is for Capital Options to gain a forensic advantage not otherwise available to it in ordinary pre-trial processes in the District Court of Queensland. This purpose is being pursued exclusively for the benefit of Capital Options and not to confer a benefit on Consortium or its creditors of contributories considered as a whole. Section 596A does not authorise an examination to facilitate the investigation or prosecution of a claim that has nothing to do with the external administration of Consortium: Walton at [87]. For these reasons, I am not satisfied that the examination summonses issued either to the mandatory examinees or to the discretionary examinees were issued for a proper purpose. They must be discharged. 63 So this was not just the case of her Honour considering the matter anew once the summonses had been discharged for non-disclosure. What was manifested by the non-disclosure and the other circumstances more than adequately justified her Honour's abuse of process and collateral purpose findings. 64 Now what does Capital Options' proposed grounds of appeal say about any of this? 65 Proposed grounds 1 to 4 do not challenge the underlying factual findings of her Honour, but seem to assert that the relevant matters were not required to be disclosed or that these non-disclosures did not justify discharging the summonses. As to the former assertion, the contention is risible. As to the latter assertion, her Honour's evaluation and determination were well within her Honour's broad discretionary or evaluative function. No House v The King type error has been shown concerning her evaluation of the significance of the non-disclosure and the abuse of process and improper purpose questions. 66 Proposed ground 5, in essence challenging her Honour's reasons at [53], involves a bare assertion with no underlying justification given. Proposed grounds 6, 7 and 8 are more of the same. Further, aspects of those grounds overstate what her Honour found. Her Honour's reasons concern her finding of a dominant improper or collateral purpose held by Capital Options, as distinct from whether everything to be examined was outside the examinable affairs concerning Weststate Consortium. 67 Now there has been some attempt by Capital Options to suggest that all that is needed to obtain summonses for examination is to show that a relevant cause of action might exist to which information from an examination might be relevant. I am prepared to accept that generally speaking the position is as described by Derrington J in Pitman v Park [2020] FCA 887 at [75]. But what any of this has to do with the matter is unclear. The relevance of Capital Options' submission is unclear in terms of the proposed grounds of appeal. It appears to suggest that her Honour should simply have ignored the relevant abuse of process and the dereliction of the duty of disclosure that a moving party has on an ex parte application. Moreover, even if some information obtained from any examination could have some conceivable relevance to a possible cause of action, that does not act as any effective disinfectant to the abuse of process and the dominant collateral purpose found by her Honour. 68 In summary, her Honour's decision has not been shown to be attended with sufficient doubt such as to warrant the grant of leave to appeal. Let me turn to the next matter.

No substantial prejudice 69 In my view there is no substantial prejudice to Capital Options if I refuse leave to appeal, assuming her Honour's decision to be wrong. 70 ASIC has now withdrawn its authorisation. ASIC revoked Capital Options' "eligible applicant" status on 27 June 2023. So, even if the summonses were saved by any appeal, Capital Options could not conduct the examinations because s 597(5A)(b) restricts the right to participate in an examination to an "eligible applicant". 71 The "eligible applicant" status was necessary to allow the appellant to apply under ss 596A and 596B. However, the status of "eligible applicant" is also necessary to conduct examinations in the sense that the appellant could not take part in any examination as it is no longer an "eligible applicant" (s 597(5A)(b)). 72 So, even if I had granted leave to appeal, any appeal would result in a futile outcome, save and except perhaps revisiting her Honour's consequential costs orders. 73 Of course, ASIC could revisit the question of the "eligible applicant" status of Capital Options if the appeal succeeded. But if it were to do so in a manner favourable to Capital Options, then that just establishes that there is no prejudice for another reason. Capital Options in such a scenario could then apply again for the issuing of summonses.

Conclusion 74 For all of these reasons I will refuse leave to appeal. 75 I will make the necessary orders to reflect these reasons. Further, as the respondents have been substantially successful, they will be given a costs order in their favour on all applications. But I do not consider that such an order should be on an indemnity basis. In terms of the applications and the conduct of Capital Options before me, there is no warrant for making anything other than the usual order on costs, despite the submissions of the respondents at the end of oral argument last week, and notwithstanding how her Honour dealt with consequential costs orders. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.

SCHEDULE OF PARTIES QUD 258 of 2023 Respondents Fifth Respondent: DAVID KIPPIN Sixth Respondent: MICHELE FALCONIERI