Ex parte Yeo and Bradd; Re Didasko Institute Pty Ltd (rec apptd) (in liq) [2025] VSC 322 (6 June 2025)

1 The applicants have appealed a decision of a Judicial Registrar refusing them access to affidavit material considered by the Court when it issued summonses for examination pursuant to s 596B of the Corporations Act 2001 (Cth) (the 'Act').

2 The summonses for examination concern the examinable affairs of Didasko Institute Pty Ltd ('Didasko').

3 Pursuant to r 84.05(3) of the Supreme Court (General Civil Procedure) Rules 2015, the appeal from the Judicial Registrar's decision is conducted by way of a hearing de novo.

4 For the reasons set out below, the appeal is dismissed.

5 Didasko is an online education provider. On or about 20 December 2016, Didasko entered into a Course Services Agreement with La Trobe University ('La Trobe') pursuant to which Didasko provided various La Trobe courses under licence, along with other services.

6 The Course Services Agreement was subsequently varied by:

(a) an Agreement to Advance Prepayment and Deed of Variation to Course Services dated 29 March 2018;

(b) an Extension and Variation to Course Services Agreement made on or about 11 October 2021; and

(c) a Teach Out and Variation Deed made on or about 12 or 13 October 2022.

7 On 17 March 2023, Melbourne Education Nominees Pty Ltd, in its capacity as trustee for the Melbourne Education Group Trust ('MEN'), appointed the plaintiffs, Andrew Reginald Yeo and Timothy James Bradd, as receivers over Didasko and its assets.

8 The deed of appointment appointed the receivers jointly and severally over the secured property of Didasko. 'Secured property', as defined in the deed, included all personal property of Didasko under the Personal Property Securities Act 2009 (Cth). As a consequence of Didasko being placed in external administration, it was no longer able to perform its obligations under the Course Services Agreement.

9 On 21 March 2023, La Trobe's lawyers emailed Mr Yeo requesting materials including information about La Trobe students and their academic progress, communications between Didasko staff and La Trobe students and course materials prepared for La Trobe.

10 Mr Yeo responded the same day, asking for an offer before transferring the requested data. La Trobe subsequently offered $30,000.

11 Mr Yeo's reply later in the evening included the following:

Sorry - I am not prepared to even go back to my appointor tonight with that sort of figure - I would be honestly wasting all of our time.

Our client is owed over $3 million and LaTrobe was being billed (on average) approx $500k per month.

If your instructions are more aligned to those numbers, then I can start a discussion.

12 Following some further discussions, on 24 March 2023, the plaintiffs and La Trobe entered into a Data Transfer Agreement. Pursuant to the terms of that agreement, La Trobe was to pay the plaintiffs $250,000 in exchange for access to data held by Didasko which concerned La Trobe's courses and students.

13 On 12 April 2023, Didasko was placed in liquidation by way of a creditors' voluntary winding-up. Following the voluntary winding-up, a dispute arose between the plaintiffs and La Trobe over who retained the intellectual property in the Course Material under the Course Services Agreement.

14 On 15 September 2023, the plaintiffs wrote to La Trobe describing their arrangements and asserted:

On this basis, the intellectual property in the Course Material lies with [Didasko]. To the extent that [La Trobe] staff were involved in this process, any joint IP arising from the same is minimal.

[La Trobe's] license to utilise [Didasko]'s intellectual property in any Course Material relating to the Business Courses has expired (and to any extent necessary, is expressly revoked).

[La Trobe's] license to utilise [Didasko]'s intellectual property in any Course Material relating to the IT Courses has expired (and to any extent necessary, is expressly revoked) save for the material specifically required for the finalisation of third year students in the IT Courses (IT Course Material), which will expire in January 2024.

As a result, any continued use of any of that material by [La Trobe] constitutes an infringement of the rights held by [Didasko].

We require that [La Trobe] immediately confirm that:

(a) it has ceased using all Course Material (save at this point for the IT Course Material);

(b) it has deleted all Course Material in its possession (save at this point for the IT Course Material); and

(c) it has not utilised any of the Course Material to reconstitute its own separate courses (as any common content or material using our client's intellectual property as a base will be in breach of our client's rights).

Failure to provide that confirmation will result in legal action, including but not limited to an injunction to stop its use and a claim for an account of profits.

15 On 27 September 2023, La Trobe responded to this letter rejecting the plaintiffs' assertions and referring to cl 5.1 of the Teach Out and Variation Deed which provides:

Intellectual Property

The parties acknowledge that [La Trobe] requires access to the Course Materials for the successful transition and teaching of the Students during and beyond the Teach Out Periods. To the extent that [La Trobe] does not own or have an ongoing licence to any Course Materials under the [Course Services Agreement] or any Course Schedule, Didasko grants to [La Trobe] a nonexclusive, permanent, irrevocable, fee-free, worldwide licence to reproduce, use, modify, adapt and exploit those Course Materials solely for [La Trobe] purposes.

16 Later that day, the plaintiffs responded, via their lawyers, reasserting their position.

17 On 4 October 2023, La Trobe responded setting out the terms of cl 5.1 of the Teach Out and Variation Deed in full and asserting:

The parties intention under the Teach Out Deed is clear; La Trobe is to have a permanent and irrevocable licence to the Course Materials for its teaching purposes. Clause 5.1 of the Teach Out Deed uses the word 'permanent' which means 'lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding'. A permanent licence is therefore a perpetual licence, and the first sentence of clause 5.1 makes it clear that the parties intended the permanent, irrevocable licence to survive the expiration of the Teach Out Deed. Further, the permanent licence is expressly stated to be irrevocable.

The University is required to retain its records in accordance with the Public Records Act 1973 (Vic) and is therefore unable to delete Course Material in its possession at this time.

18 On 24 November 2023, the plaintiffs, via their lawyers, responded as follows:

We continue to act for the receivers of [Didasko]. We refer to previous correspondence, and specifically your email of 4 October 2023.

We disagree with your stated position.

At the time you entered into the Teach Out Deed:

a) [Didasko] was not entitled to validly licence or otherwise deal with any of its assets without the specific written consent of the secured creditor, [MEN]; and

b) [La Trobe] was on notice of the existence of MEN's security interest, [Didasko's] financial position, and that [Didasko] was in default.

[La Trobe] cannot rely on rights you allege arise specifically out of the Teach Out Deed in circumstances where you knew the granting of the same was a breach of MEN's security interest.

We reserve all rights and will consider what actions we will next take.

19 On 22 April 2024, the plaintiffs applied to the Court, pursuant to s 596B of the Act, for the issue of summonses for the examination of each of the following persons:

(a) Professor John Dewar, the former Vice Chancellor and President of La Trobe between January 2012 and December 2023;

(b) Professor Theo Farrell, the current Vice Chancellor and President of La Trobe since February 2024;

(c) Jodie Banfield, La Trobe's Chief Financial Officer and former Director of Finance, having commenced at La Trobe in April 2018;

(d) Mark Smith, La Trobe's Chief Operating Officer and formerly in various other roles, having commenced at La Trobe in November 2017;

(e) Taryn Rulton, La Trobe's Chief Commercial Officer since August 2018; and

(f) Bridget Soulsby, La Trobe's Executive Director of Operations and formerly in various other roles, having commenced at La Trobe in September 2012.

20 In support of their application for the issue of the summonses, the plaintiffs relied on an affidavit of Andrew Reginald Yeo, sworn 16 April 2024.

21 By reason of the operation of s 596C of the Act and orders made by the Court on 28 May 2024, the affidavit and its exhibits were marked confidential and are not available for inspection by any person except by order of the Court.

22 At the hearing of the application, the plaintiffs withdrew their application for the issue of a summons to Professor Theo Farrell and instead sought an order that he produce documents pursuant to s 597(9) of the Act.

23 The summonses for the examination of the applicants were subsequently issued by the Court.

24 By interlocutory process filed 1 July 2024, the applicants applied for orders seeking access to the materials considered by the Court in issuing the summonses, pursuant to s 596C of the Act (including a transcript of the hearing) and the discharge of those summonses pursuant to r 11.5 of the Supreme Court (Corporations) Rules 2013 (Vic). The application was supported by three affidavits with exhibits filed by their solicitor, Alexander David Bannister, on 1, 11 and 30 July 2024.

25 That part of the interlocutory process relating to access to materials was heard by Gitsham JR on 13 August 2024 and was dismissed on 18 March 2025. The applicants appeal that decision.

26 It is convenient to set out the relevant sections of the Act.

(1) The Court may summon a person for examination about a corporation's examinable affairs if:

(a) an eligible applicant applies for the summons; and

(b) the Court is satisfied that the person:

(i) has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or

(ii) may be able to give information about examinable affairs of the corporation.

(2) This section has effect subject to section 596A.

596C Affidavit in support of application under section 596B

(1) A person who applies under section 596B must file an affidavit that supports the application and complies with the rules of court.

(2) The affidavit is not available for inspection except so far as the Court orders.

27 Section 596A is headed 'Mandatory examination'. It imposes a duty on the Court to make an order summoning a person for examination if the Court is satisfied that the person is, or was during a specified period, an 'officer' or 'provisional liquidator' of the corporation.

28 Section 9 defines 'examinable affairs', in relation to a corporation to mean:

(a) the promotion, formation, management, administration, restructuring or winding up of the corporation; or

(b) any other affairs of the corporation (including anything that is included in the corporation's affairs because of section 53); or

(c) the business affairs of any of the following, in so far as those business affairs are, or appear to be, relevant to the corporation or to anything that is included in the corporation's examinable affairs because of paragraph (a) or (b):

(i) a body corporate that is, or has been, related to the corporation;

(ii) an entity that is, or has been, connected with the corporation.

29 Section 53 defines the corporation's affairs. It is equally broad and encompasses matters such as transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee);[1] and any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property at a time when a receiver, or a receiver and manager, is in possession of, or has control over, property of the body.[2]

30 The concept of 'information' about the examinable affairs of the corporation is broader than direct evidence.[3] For the purposes of s 596B, the Court must be satisfied objectively that the person may be able to give information,[4] in the sense that there is a reasonable degree of likelihood or possibility that the examinee has information.[5]

C.2 Access to material other than the supporting affidavit

31 While s 596C(2) of the Act provides that an affidavit in support of an application for the issue of examination summonses is not available for inspection except so far as the Court orders, it does not explicitly refer to other material related to the application for summonses, such as a transcript of the hearing of the application.

32 Nevertheless, it was not in contention that the Court would have the power to permit inspection of other material relevant to the application for summonses. The Court is empowered to grant leave to third parties to inspect particular categories of documents pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 and more generally, under its inherent jurisdiction 'to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction'.[6]

33 It was also not in contention that those powers should be exercised by reference to the principles applicable to s 596C(2). Absent other countervailing circumstances, it is appropriate that the same considerations should apply to the inspection of non-affidavit material as apply to affidavit material where such material relates to the application for summonses for examination.

C.3 The Court's discretion to permit inspection of the supporting affidavit

34 In Re Excel Finance Corporation Ltd ('Re Excel'), the Full Federal Court observed that:

The Court has a discretion to order the disclosure, to a prospective examinee, of material lodged in support of the application for an examination and should do so where the justice of the case requires: cf Re British and Commonwealth Holdings Plc (Nos 1 and 2) [1992] Ch 342 at 355 per Nourse LJ and at 367 per Ralph Gibson LJ.

It does not follow that the Court would permit every examinee or potential examinee to have access to such material. There are sound reasons why inspection should not be freely granted for so to do could afford to an examinee information which could permit the examination process to be frustrated ...

An applicant will not be permitted access to such material to enable him or her to "fish" for a case. There must be material before the Court from which it appears that the applicant has an arguable case, to which the material is relevant, before the discretion should be exercised in favour of that applicant. But once that appears the discretion will normally be exercised in favour of the applicant.[7]

35 In Re Moage Limited (in liq), Mansfield J considered the observations of the Full Federal Court in Re Excel, stating:

[i]t is entirely sensible, as the Full Court has said, that the discretion to authorise the inspection of the affidavit should not be exercised in favour of a proposed examinee without reason. The fundamental judgment is based upon what the justice of the case in the particular circumstances demands. In making that determination, regard will need to be had to the content of the affidavit, so that where appropriate the purpose of the examination is not frustrated or confidential information or potentially significant information which might if released impinge upon an effective examination is not inappropriately released. If there are no particular considerations arising from the affidavit or its terms, or from the material referred to, then provided that the applicant for the release of the affidavit presents 'an arguable case' or some sensible grounds for maintaining the application, to which the affidavit is relevant, then generally the discretion will be exercised in favour of that applicant.[8]

36 In Meteyard v Love ('Meteyard'), Basten JA observed that 'an applicant for disclosure of the affidavit will generally be able to obtain access to the affidavit if he or she can demonstrate an arguable case that the issue of the summons exceeded the power of the court under s 596B and that access to the affidavit is likely to assist in determining the correctness of the challenge'.[9]

37 The process by which the Court should consider an application for inspection of the affidavit was explained by Anderson J in Re Secatore (in his capacity as the liquidator of Last Lap Pty Ltd (in liq)) ('Secatore'):

[w]here a party applies for access to the supporting affidavit on the basis that there is an arguable case that the issue of a summons for examination is invalid, the court must first determine whether such a case is established on the material before the Court other than the supporting affidavit. Once the court is satisfied that an arguable case is established, it should then inspect the supporting affidavit itself and form a view as to whether or not it is in the interests of justice to permit the applicant to access the affidavit.[10]

38 As described in detail below, the 'arguable case' agitated by the applicants is that the examinations would amount to an abuse of process and therefore the issue of the summonses exceeded the Court's authority.

39 In Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) ('Walton'), Gageler J said:

The s 596B discretion is conferred conformably with the ordinary incidents of the exercise of jurisdiction by the Court. Indispensable to the ordinary incidents of the jurisdiction of the Court is the capacity of the Court to prevent abuse of its process. The Court can accordingly refuse to make an order ... if it is satisfied in advance that summoning a person on the application of an eligible applicant would amount to an abuse of the process of compulsory examination for which the Part provides. The Court can also stay an order it has made ... if it is later satisfied that subjecting or continuing to subject the person to the process of compulsory examination amounts to an abuse of that process.[11]

40 Later, his Honour made clear that an abuse of process will exist if an unfair forensic advantage in existing litigation were obtained from the compulsory examination.[12]

41 However, his Honour concluded that the 'ultimate purpose of enabling evidence and information to be obtained to support the bringing of proceedings against officers and other persons in connection with the examinable affairs of the first respondent was not illegitimate'.[13]

42 In the same case, Kiefel CJ and Keane J explained that:

[t]here can be no doubt that if the predominant purpose of the examination for which an application is made under s 596A, or s 596B, is collateral or foreign to the statutory purpose of such an examination, the application will amount to an abuse of process.

...

Abuses of process in connection with an application for an examination summons may take many forms. An application brought by a liquidator for an examination for the purpose of rehearsing the cross-examination of a potentially hostile witness in pending litigation would likely be an abuse of process. Other examples may include the cross-examination of a person to destroy their credit and to obtain de facto discovery when an order for discovery has been refused. In these examples, the applicant is seeking a forensic advantage not otherwise available by ordinary pre-trial processes where the legislative purpose is not advanced. They have in common that they are purposes foreign to the statutory purpose, and do not permit the exercise of the statutory power. To do so would be an abuse of that power. In those circumstances it would be an abuse of the processes of the court to seek the exercise of the power.[14]

43 Another circumstance that may give rise to finding that an examination was an abuse of process is if it were pursued for the predominant purpose of causing undue inconvenience or embarrassment to the examinee. As identified by Besanko J in Harvey v Burfield:

[t]he authorities establish that an improper purpose includes a purpose of using the examination as a dress rehearsal for cross-examination, or for the purpose of destroying the credibility of the examinees or witnesses who might be called for the examinee in substantive proceedings, or for the predominant purpose of obtaining a forensic advantage not available from ordinary pre-trial procedures, or simply to cause undue inconvenience or embarrassment to the examinee or to inflict costs.[15]

44 In written submissions, the applicants referred to five possible bases on which there may be an arguable case that the Court exceeded its power in issuing the summonses. However, in oral submissions, counsel abandoned the first three bases and contended that there was an arguable case that the examinations constituted an abuse of process in three ways.

45 First, the applicants submitted that there was an arguable case that the examinations were sought for the improper purpose of causing undue inconvenience or embarrassment to the examinees. They relied on the correspondence between Mr Yeo and La Trobe's lawyers from 21-24 March 2023, which resulted in the Data Transfer Agreement. From this correspondence, the applicants sought to draw two conclusions: first, that the plaintiffs were acting in their appointor's interests; and secondly that the plaintiffs were prepared to use their position as receivers to gain commercial advantage for their appointor.

46 The applicants submitted that Mr Yeo's conduct evidenced a disposition from which it should be inferred that the examinations were sought for some collateral advantage, including embarrassment. This inference was said to be strengthened by the number of La Trobe executives sought to be examined, their senior roles and their limited involvement in Didasko's affairs.

47 Secondly, the applicants submitted that there was an arguable case the examinations were being used to obtain an unfair forensic advantage in prospective litigation. The applicants referred to the plaintiffs' letter of 15 September 2023 concerning the intellectual property dispute in respect of the Course Material under the Course Services Agreement and in particular the statement in the letter that failure to cease using the Course Material would 'result in legal action, including but not limited to an injunction to stop its use and a claim for an account of profits'.[16] While acknowledging that Gageler J's observations in Walton were limited to existing litigation, the applicants submitted that there was no principled difference between prospective and existing litigation, although they conceded that an improper purpose may more readily be discerned in existing litigation.

48 The applicants contended that if litigation were pursued by Didasko against La Trobe, there was a danger that the examinations were being used as a dress rehearsal for cross-examination, which would constitute an abuse of process.

49 Thirdly, the applicants submitted that the plaintiffs' letter of 24 November 2023 was concerned with asserting rights belonging to MEN rather than Didasko. That letter suggested that La Trobe had knowingly interfered with MEN's contractual rights when entering into the Teach Out and Variation Deed. They submitted that, on this characterisation, obtaining the summonses would constitute an abuse of process as it pursued MEN's interests rather than Didasko's.

50 This submission was said to be supported by the fact that the plaintiffs were appointed by MEN rather than the Court, were acting for MEN's benefit in obtaining $250,000 under the Data Transfer Agreement and had compromised Didasko's rights in entering into that agreement, which provided under cl 6(a) that Didasko 'has no rights in respect of the delivery of the [La Trobe] courses... [and] is not entitled to ... receive any payment in connection with the delivery on and from the date of this deed'.

51 The plaintiffs submitted that there was no evidence of improper conduct by Mr Yeo in negotiating the Data Transfer Agreement. His statement that $30,000 was insufficient did not establish improper purpose and was equally consistent with the cost of data transfer exceeding that amount.

52 The plaintiffs argued there was no nexus between any alleged inappropriate conduct in negotiating the Data Transfer Agreement and the purpose of the examinations. Even if such conduct were established, it would constitute inadmissible tendency evidence and provide no foundation for inferring that the examinations were sought for an ulterior purpose.

53 The plaintiffs submitted that this was particularly so in circumstances where each of the examinees was a properly examinable person. In particular, it was submitted that:

(a) Professor John Dewar participated in senior executive decisions requiring review, approval, or referral to council sub-committees, constituting direct involvement. His involvement was confirmed in an email from Mark Smith to Andrew Horton (a Didasko director). His lack of specific recollections was irrelevant, as recollection might be prompted and he might have specific recollections of other periods.

(b) Jodie Banfield was aware of La Trobe's involvement with Didasko and her team was involved in regular financial reporting concerning Didasko and processing invoices. Her lack of direct dealings with Didasko individuals was immaterial given her team's direct involvement in financial reporting.

(c) Mark Smith, Taryn Rulton and Bridget Soulsby all had day-to-day involvement with Didasko.

54 The plaintiffs submitted that there was no arguable case that the examinations were being pursued for the improper purpose of causing undue inconvenience or embarrassment to the examinees and that it was pure speculation to say otherwise.

55 In relation to the argument that that the purpose of the examinations was to conduct a dress rehearsal of cross-examination, the plaintiffs submitted that there was no evidence that any of the examinees would be material witnesses in any contemplated future litigation nor that any of the examinees would give unfavourable evidence warranting cross-examination. If any inference was open, it was that the plaintiffs sought to ascertain what evidence, if any, the examinees possessed and to whom it would be favourable, rather than to practise undermining potential evidence.

56 The plaintiffs submitted that, in such circumstances, whether any questions asked during the examination veered into improper cross-examination would be a matter for the judicial officer conducting the examination.

57 In response to the applicants' contention that the examinations aimed to pursue MEN's litigation interests, the plaintiffs submitted that no dispute between MEN and La Trobe had been identified and no evidence existed that MEN had asserted claims against La Trobe or threatened litigation. Any such litigation would be derived from Didasko's examinable affairs.

58 More specifically, the plaintiffs submitted that:

(a) MEN's appointment of the plaintiffs was irrelevant and the applicants improperly and without evidentiary basis alleged that the plaintiffs would ignore their primary obligation to the Court in favour of pleasing their appointor.

(b) No nexus existed between the negotiated payment under the Data Transfer Agreement and potential MEN litigation against La Trobe.

(c) Clause 6 of the Data Transfer Agreement merely documented the parties' agreement regarding Didasko's rights to course delivery and payment and bore no relationship to whether Didasko had granted a perpetual licence or to potential MEN litigation against La Trobe.

(d) The applicants mischaracterised the correspondence. The 24 November 2023 letter asserted that La Trobe lacked rights to Didasko's intellectual property, referencing the existing dispute. It contained no assertion of MEN's rights against La Trobe or consideration of potential claims. No evidence supported the contention that MEN was pursuing claims against La Trobe. In any event, any MEN claim against La Trobe would be so interlinked with Didasko's examinable affairs that it would not be improper.

59 As outlined above, the test for access to affidavit material supporting the issue of examination summonses requires the applicants to demonstrate an arguable case that the issue of the summonses exceeded the Court's power under s 596B or is otherwise invalid. The applicants have advanced three grounds on which they contend such an arguable case exists, all relating to alleged abuse of process. I will consider each in turn.

E.1 Is there an arguable case that that the examinations were sought for the improper purpose of causing undue inconvenience or embarrassment to the examinees?

60 The applicants submitted that there is an arguable case that the examinations were sought for the improper purpose of causing undue inconvenience or embarrassment to the examinees, drawing inferences from Mr Yeo's conduct during negotiations leading to the Data Transfer Agreement.

61 The applicants rely principally on the exchange of correspondence between 21-24 March 2023, particularly Mr Yeo's response to La Trobe's initial offer of $30,000 where he said:

Sorry - I am not prepared to even go back to my appointor tonight with that sort of figure - I would be honestly wasting all of our time.

Our client is owed over $3 million and LaTrobe was being billed (on average) approx $500k per month.

If your instructions are more aligned to those numbers, then I can start a discussion.

62 From this exchange, the applicants seek to establish that the plaintiffs were clearly acting in the interests of their appointor (MEN) and that the plaintiffs were not embarrassed to use their unique position as receivers with power to act on behalf of the company to obtain some commercial advantage for their appointor.

63 However, the correspondence, viewed objectively, does not support the inference the applicants seek to draw. Mr Yeo's response can readily be understood as legitimate commercial negotiation in the context of asset recovery. The reference to being owed 'over $3 million' and monthly billings of 'approx $500k' provides context as to why $30,000 would be considered inadequate compensation for the transfer of valuable data.

64 Further, I accept the plaintiffs' submission that there is no nexus between any alleged inappropriate conduct in negotiating the Data Transfer Agreement and the purpose for which the examination summonses were sought. Even if Mr Yeo's negotiating approach could be characterised as commercially aggressive, this would not establish that the subsequent application for examination summonses was motivated by a desire to embarrass or inconvenience the examinees.

65 Importantly, the plaintiffs have demonstrated that each examinee has a legitimate connection to Didasko's examinable affairs. Professor John Dewar was involved in senior executive decisions regarding the arrangement with Didasko and his involvement is documented in correspondence. Jodie Banfield was aware of La Trobe's involvement with Didasko and her team was involved in regular reporting of Didasko financials and processing of invoices. Mark Smith, Taryn Rulton and Bridget Soulsby all had day-to-day involvement with Didasko's operations.

66 The fact that senior executives are sought to be examined does not, without more, establish an improper purpose. These individuals occupied positions that would naturally involve them in decisions regarding La Trobe's substantial commercial relationship with Didasko.

67 I am therefore not satisfied that the applicants have established an arguable case that the examinations are sought for the purpose of causing undue inconvenience or embarrassment. The evidence relied upon does not support the inference sought to be drawn and the legitimate basis for examining each proposed examinee undermines any suggestion of improper purpose.

E.2 Is there an arguable case the examinations were being used to obtain an unfair forensic advantage in prospective litigation?

68 The applicants submitted that the examinations were sought for the improper purpose of rehearsing the cross-examination of witnesses in prospective litigation concerning intellectual property rights in course materials.

69 Although they concede that that improper purpose may more readily be discerned where litigation is already on foot, they contend that, as a matter of principle, there should be no difference between prospective and existing litigation. There is however a significant difference between existing and prospective litigation reflecting practical differences in the likelihood that an examination would provide an unfair forensic advantage. With existing litigation, pleadings have been filed, issues are crystallised and witnesses identified. The potential for using examination procedures to rehearse cross-examination or obtain discovery-like advantages is therefore more readily apparent and more easily established. It is also significant that in Walton, in discussing the potential abuse of process that may result from the rehearsal of cross-examination, all members of the High Court spoke of litigation already underway. Gageler J referred to 'existing litigation'[17] and Kiefel CJ and Keane J and separately Edelman and Steward JJ referred to 'pending litigation'.[18]

70 The applicants have not, in any event, demonstrated that any of the proposed examinees would be material witnesses in contemplated litigation, nor that their evidence would be unfavourable to the plaintiffs such that cross-examination would be warranted. As the plaintiffs submit, it is equally plausible that the examinations are sought to ascertain what evidence, if any, the examinees might have and to whom it would be favourable.

71 The correspondence between the parties, while indicating a dispute over intellectual property rights, does not establish that the examination summonses were sought as part of a litigation strategy. The dispute appears to concern the interpretation of contractual provisions in the Teach Out and Variation Deed, but there is no evidence that litigation has been commenced or that specific witnesses have been identified.

72 The examination of La Trobe personnel concerning their knowledge of the contractual arrangements and the circumstances surrounding the creation and variation of agreements with Didasko falls squarely within the legitimate scope of s 596B examinations. These matters concern the 'examinable affairs' of Didasko as defined in s 9 of the Act, particularly the corporation's business relationships and contractual arrangements.

73 I am not satisfied that the applicants have established an arguable case that the examinations constitute an improper rehearsal of cross-examination of witnesses in prospective litigation. The evidence does not establish that litigation is imminent or that the examinations are being sought for the purpose of obtaining an unfair forensic advantage.

E.3 Is there an arguable case that the examinations are being pursued for the improper purpose of advancing MEN's rather than Didasko's interests?

74 The applicants' final submission was that the examinations were sought to pursue the interests of MEN rather than Didasko, based on the letter of 24 November 2023, which suggested that La Trobe's entry into the Teach Out and Variation Deed constituted a breach of MEN's security interest.

At the time you entered into the Teach Out Deed:

a) [Didasko] was not entitled to validly licence or otherwise deal with any of its assets without the specific written consent of the secured creditor, [MEN]; and

b) [La Trobe] was on notice of the existence of MEN's security interest, [Didasko's] financial position, and that [Didasko] was in default.

[La Trobe] cannot rely on rights you allege arise specifically out of the Teach Out Deed in circumstances where you knew the granting of the same was a breach of MEN's security interest.

76 However, this correspondence is more properly characterised as advancing Didasko's position in the intellectual property dispute rather than asserting MEN's separate rights. The argument that Didasko lacked capacity to grant rights under the Teach Out and Variation Deed goes to the validity of that grant, which would affect Didasko's retained intellectual property rights.

77 The fact that this argument refers to MEN's security interest does not transform the dispute into one where MEN's interests are being pursued at the expense of Didasko's interests. Rather, it appears to be an argument that supports Didasko's position that it has not effectively transferred its intellectual property rights.

78 Importantly, there is no evidence before the Court that MEN has commenced separate proceedings against La Trobe or that MEN is contemplating such proceedings. The applicants' submission appears to be based on speculation rather than evidence of actual or threatened litigation by MEN.

79 The applicants' argument also misconceives the role of receivers. While receivers are appointed by secured creditors, they owe duties to the Court and must act in accordance with their statutory obligations. The suggestion that the receivers are improperly pursuing their appointor's interests rather than discharging their statutory duties lacks evidentiary foundation.

80 The fact that the receivers negotiated the Data Transfer Agreement for $250,000 does not establish that they are acting improperly. Asset realisation is a core function of receivership and recovering value from Didasko's data assets through commercial negotiation appears to be entirely consistent with their proper role.

81 Finally, even if MEN were contemplating some form of action against La Trobe (which is not established), any such claim would necessarily be interconnected with Didasko's examinable affairs. The alleged breach of MEN's security interest arises from Didasko's grant of intellectual property rights, which is directly connected to Didasko's business relationship with La Trobe and the circumstances of its financial distress.

82 I am not satisfied that the applicants have established an arguable case that the examinations are being pursued for the improper purpose of advancing MEN's interests rather than investigating Didasko's examinable affairs. The evidence does not support this characterisation of the proceedings.

83 Having considered each of the three grounds advanced by the applicants, I am not satisfied that they have demonstrated an arguable case that the issue of the summonses exceeded the power of the Court under s 596B or is otherwise invalid.

84 Following the approach outlined in Secatore,[19] since the applicants have failed to establish an arguable case on the material before the Court, other than the supporting affidavit, I am not required to inspect the supporting affidavit itself or to form a view as to whether it would be in the interests of justice to permit access to it.

85 As stated in Meteyard, access to confidential material will generally be granted where an applicant 'can demonstrate an arguable case that the issue of the summons exceeded the power of the court under s 596B and that access to the [material] is likely to assist in determining the correctness of the challenge'.[20] Since no arguable case has been established, it cannot be said that access to the affidavit would be likely to assist in determining the correctness of any challenge.

86 The examinations appear to be properly directed toward investigating the examinable affairs of Didasko, particularly its commercial relationship with La Trobe and the circumstances surrounding various contractual arrangements. Each proposed examinee has a demonstrated connection to these affairs through their roles at La Trobe. The applicants' submissions amount to speculation about improper purposes rather than evidence supporting an arguable case of abuse of process.

87 For these reasons, the applicants' appeal is dismissed.

[1] Corporations Act 2001 (Cth) s 53(a).

[2] Ibid s 53(d)(i).

[3] Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36, 46 [38] (Basten JA, Beazley JA agreeing at 39 [1]) ('Meteyard'); S & V Nominees Pty Ltd (in liq) v Rabobank Australia Ltd [2010] FCA 429, [35] (Besanko J) ('S & V Nominees').

[4] S & V Nominees [2010] FCA 429, [35] (Besanko J).

[5] Re Cunningham [2017] FCA 559; (2017) 121 ACSR 119, 127 [27]-[29] (Derrington J).

[6] PT Bayan Resources TBK v BCBC Singapore Pty Ltd [2015] HCA 36; (2015) 258 CLR 1, 18 [43] (French CJ, Kiefel, Bell, Gageler, Gordon JJ) (citations omitted).

[7] Re Excel (1994) 52 FCR 69, 93-4 (Gummow, Cooper and Bell JJ).

[8] Re Moage Limited (in liq) [1997] FCA 719; (1997) 77 FCR 81, 95.

[9] Meteyard [2005] NSWCA 444; (2005) 65 NSWLR 36, 72-3 [141]-[142] (Beazley JA agreeing at [1]).

[10] Secatore [2020] FCA 627; (2020) 144 ACSR 648, 665-6 [75] (citations omitted) (emphasis in original).

[11] Walton [2022] HCA 3; (2022) 275 CLR 508, 541-2 [92] (citations omitted) ('Walton').

[14] Ibid 520-1 [19], [21] (citations omitted).

[15] Harvey v Burfield [2003] SASC 192; (2003) 175 FLR 385, 396 [39] (emphasis added).

[17] Walton [2022] HCA 3; (2022) 275 CLR 508, 550 [117].

[18] Ibid 520 [21] (Kiefel CJ and Keane J), 572 [176] (Edelman and Steward JJ).

[19] Secatore [2020] FCA 627; (2020) 144 ACSR 648.

[20] Meteyard [2005] NSWCA 444; (2005) 65 NSWLR 36, 72-3 [141]-[142] (Beazley JA agreeing at [1]).