Foxcraft v The Ink Group 15 ACSR 203

commencement of the proceeding, and for the proceeding to continue it is necessary for leave to be granted under s 440D(1) of the Corporations Law, there being no consent forthcoming from the administrator. It is obvious that the claim, an action for damages for personal injury said to result from the consumption of contaminated food, could involve a significant number of individual claimants and that there is potential for a substantial sum of damages being awarded if the claims, or some of them, are made out. In these circumstances, in view of the fact that the respondent is obviously in a degree of financial difficulty and perhaps is in jeopardy of going into liquidation, it seems that the question of whether or not there is any insurance indemnity available in the event of the applicants being successful, is a matter that is proper to take into account in determining whether or not leave to proceed should be given. This was a matter that was specifically referred to by Young J in Foxcraft v The Ink Group 15 ACSR 203 at p 205. The Corporations Law addresses the situation where a corporation that is in liquidation has a liability covered by a contract of insurance, and I refer particularly to s 562. If it comes to pass that the respondent does go into liquidation, any successful applicant in this proceeding would have a right to know the particulars of the insurance cover, if any, that is held by the respondent. Without that information the right under s 562 could well be defeated. This proceeding has not been brought in a jurisdiction where issues of fact are tried by a jury. The traditional reluctance to requiring disclosure of details of insurance coverage has to do with the desirability of keeping that sort of information from a jury which is charged with the responsibility of determining liability and damages. But that case is not this case. I am of the opinion that it is in the interests of justice that the applicant have leave to proceed against the respondent and that there be an order to that effect pursuant to s 440D of the Corporations Law. I am also of the view that for the purposes of doing justice, and to progress the matter in an orderly fashion, the respondent should be required to produce for inspection evidence of any relevant insurance cover that it has. This would normally be done by producing its insurance policy. I am, accordingly, prepared to make orders as sought. I think that paragraph 3 of the minute should be amended so as to make it clear that the obligation to produce for inspection applies only to any contract of insurance that is applicable to any liability the respondent may subsequently be found to have in respect of the claims made in this proceeding. I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney Associate: Dated: