1 I have before me an application under s.71 of the Civil Procedure Act 2005 for an order that the applications in the HIH matters listed for hearing this morning be dealt with in the absence of the public. The application is made on the basis of s.71(b) which permits such an order to be made "if the presence of the public would defeat the ends of justice".
2 The substantive applications involve directions to liquidators and other relief concerned with the progress of and steps to be taken in litigation, in which the companies in liquidation are involved. Both Mr McGrath and Mr Honey, as the liquidators of all the companies, and Mr Parbery as the special purpose liquidator of the two FAI companies, have formed and conveyed to the court a view that if the evidence intended to be adduced by them was made available to any of the defendants to the litigation concerned, the ability of the liquidators to advantageously pursue or conclude the claims for the benefit of the creditors of the relevant companies would be likely to be significantly prejudiced.
3 The circumstances accordingly continue to be as described in my judgment of the 20 July 2005, McGrath Re HIH Insurance Ltd [2005] NSWSC 731, where the principles applicable to this kind of application were discussed. The application then was under s.80 of the Supreme Court Act 1970 but for all relevant purposes the same principles apply to s.71 of the Civil Procedure Act.
4 Again, as there, the liquidators accept that there is a strong and clear public interest in open justice and that except in exceptional circumstances, proceedings should take place in public.
5 Today, as on the previous occasions, there are two other public interests competing with the public interest in open justice. The first is the public interest in the due and beneficial administration of the estates of insolvent companies by liquidators appointed by and answerable to the court, that administration being for the benefit of creditors. I previously observed that the public interest in the due administration of the insolvent estates of the HIH companies is particularly pronounced when there are many thousands of creditors from all walks of life.
6 The second competing or countervailing public interest arises from the fact that applications before me relate to the pursuit of litigation. There is a clear public interest in the due administration of justice, in that in litigation in the normal course an ordinary litigant would keep close to the chest, as it were, the matters that the liquidators, because of their position, see fit to bring to court. The liquidators, because of their position, should not be set aside from other litigants and be placed to a disadvantage when, as I say, they are acting for the benefit of many thousands of creditors whose interests are very much to the fore.
7 As I have said, the position now before me is the same as that which was before me on 20 July 2005. In each of the proceedings in the list today therefore I make an order, pursuant to s.71 of the Civil Procedure Act 2005, that the hearing of the interlocutory process listed for hearing be conducted in the absence of the public.
**********