[1994] FCA 1398; (1994) 130 ALR 287

Corporations Law - application for directions - powers of the liquidator - whether has power to assent or waive legal professional privilege on behalf of the company

Re Stanhill Consolidated [1967] VicRp 92; (1967) VR 749

Commissioner for Corporate Affairs v Eastoe (1989) 7 ACLC 1051

Ms J Needham instructed by Kemp Strang and Chippendall appeared for the applicant.

1. Directs that the liquidator is justified in claiming legal professional privilege on behalf of the company in respect of documents within the custody, control or power of the Australian Securities Commission, provided the liquidator is of the view that such an assertion of claim is in the interests of the company or of the creditors of the company.

2. Directs that the liquidator is justified in waiving legal professional privilege on behalf of the company in respect of any documents falling within the Search Warrant, provided that the liquidator is of the view that such a waiver is in the interests of the company or of the creditors of the company.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SACKVILLE J This is an application for directions brought by Notice of Motion on behalf of the liquidator of Dallhold Investments Pty Limited (In Liquidation) (Receivers and Managers Appointed) ("Dallhold"). The application, pursuant s.479(3) of the Corporations Law, was first made to me as Duty Judge on 7 October 1994. It was made in circumstances which were said to be of some urgency.

2. The directions sought on 7 October 1994 by Ms Needham, who appeared for the liquidator, were framed in very general terms. They included directions as to:

(a) whether the liquidator had the power on behalf of Dallhold to

assert any right that Dallhold might otherwise have had to refuse

to produce any documents on the grounds of legal professional

privilege;

(b) if he had such a power, whether he had a duty to exercise that

power in certain and, if so, what circumstances; and

(c) whether the liquidator had power, on behalf of Dallhold, to waive

any right that Dallhold might otherwise have had to refuse to

produce any documents on the ground of legal professional

privilege and, if so, whether such power was unfettered or could

only be exercised in certain and, if so, what circumstances.

3. Section 479(3) has a long "legislative pedigree", which is explored in Re G B Nathan and Co Pty Ltd (In Liq) (1991) 24 NSWLR 674, at 676-679. As McLelland J said in that case (at 679):

"(T)he only proper subject of a liquidator's application for

directions is the manner in which the liquidator should act

in carrying out his functions as such, and...the only

binding effect of, or arising from, a direction given in

pursuance of such an application (other than rendering the

liquidator liable to appropriate sanctions if a direction in

mandatory or prohibitory form is disobeyed) is that the

liquidator, if he has made full and fair disclosure to the

court of the material facts, will be protected from

liability for any alleged breach of duty as liquidator to a

creditor or contributory or to the company in respect of

anything done by him in accordance with the direction."

4. In Sanderson v Classic Car Insurances Pty Ltd (1986) 4 ACLC 114, at 116, Young J noted that applications under s.479(3) almost always involve one of four classes of cases. He identified these as follows:

"(a) guidance to the liquidator on matters of law...;

(b) questions involving legal procedure (e.g. whether a

liquidator should settle curial proceedings and if so,

on what terms);

(c) whether a liquidator should act on his commercial

judgment to postpone a sale because he recognises his

legal duty ordinarily requires him to reduce the

company's assets into cash as soon as possible and to

distribute...; or

(d) where there are two or more competing purchasers for

the company's property and the liquidator can see that

it may be alleged that the liquidator has acted mala

fide or in an absurd or unreasonable or illegal

way...".

5. The questions raised in the original Notice of Motion were certainly questions of law. However, they were framed without regard to the particular circumstances in which the liquidator proposed to act. Ordinarily, it would not be appropriate to provide general advice divorced from the circumstances of particular transactions or courses of conduct which the liquidator proposes to undertake. After some discussion of the matter, Ms Needham prepared revised directions sought by her on behalf of the liquidator. These were provided to me on 10 October 1994. She also provided detailed written submissions that I have found of assistance. It is important to note, as did McLelland J in Re G B Nathan and Co Pty Ltd (In Liq), that any directions given by me in this application do not bind third parties.

6. Before proceeding to the directions now sought, it is helpful to deal briefly with the facts, as outlined by the liquidator's affidavit.

7. On 27 September 1994 officers of the Australian Federal Police attempted to execute a search warrant, at the office of Parker and Parker, solicitors, in Perth. The search warrant required production, inter alia, of documents relating to the reacquisition by Dallhold in 1989 of the painting, "La Promenade", by Edouard Manet. Parker and Parker had acted as Dallhold's solicitors until an order was made for the winding up of the company on 5 July 1991. It appears that Parker and Parker are holding approximately sixty storage boxes of files relating to the affairs of Dallhold. The files include documents in respect of which Dallhold could make a claim to withhold production on the ground of legal professional privilege. As yet no documents have been produced by Parker and Parker pursuant to the warrant.

8. The liquidator takes the view that a waiver of legal professional privilege "could possibly be of benefit to the creditors of Dallhold". This view has been formed on the ground that investigations by the Australian Federal Police might assist in the recovery of assets of Dallhold, or of its subsidiary companies.

9. On 13 September 1994 a summons was issued to Mr Justin O'Halloran, an officer of the Australian Securities Commission (the "ASC") in Adelaide. That summons was issued pursuant to s.596B of the Corporations Law. That section permits the Court to summon a person for examination about a corporation's "examinable affairs" if the person may be able to give information about the affairs of the corporation. The summons was issued on the application of the liquidator of Southern Equities Corporation Limited (In Liquidation), formerly named Bond Corporation Holdings Limited. The summons requires the production by Mr O'Halloran of all documents in his possession, custody or power which related to the so-called "La Promenade transaction". That transaction apparently refers to a complex series of dealings involving the painting over the period October 1988 to November 1989. Some of those dealings, at least, involved the affairs of Dallhold.

10. It appears that the ASC presently holds files obtained from Parker and Parker. Some of these files relate to advice given to Dallhold in respect of "La Promenade" and, consequently, could be the subject of a claim for legal professional privilege made on behalf of Dallhold. The ASC takes the view that the documents held by it are not within the possession, custody or power of Mr O'Halloran and therefore do not fall within the terms of the summons. Any disclosure of documents by the ASC relating to the "La Promenade" transaction would be, to the extent permitted by law, voluntary.

11. In these circumstances, Ms Needham ultimately sought directions on behalf of the liquidator to the following effect:

(a) that the liquidator has the power on behalf of Dallhold to direct

Mr Justin O'Halloran, when producing any documents of Dallhold to

the Supreme Court of South Australia in response to the summons

issued by that Court, to make a claim of legal professional

privilege in respect of such of the documents for which a claim

may properly be made; and

(b) subject to the liquidator perceiving a possible benefit for the

creditors of Dallhold, the liquidator has power on behalf of

Dallhold to waive any right that Dallhold may otherwise have to

refuse to produce, on the ground of legal professional privilege,

any of the documents of Dallhold falling within the terms of the

search warrant served on Parker and Parker.

12. The effect of a winding-up order is that the powers of the directors of the company cease, although the better view is that the office of director is not terminated: Re Country Traders Distributors Ltd and the Companies Act (1974) 2 NSWLR 135, at 139, per Mahoney J; Austral Brick Co Pty Ltd v Falgat Constructions Pty Ltd (1990) 21 NSWLR 389, at 391, per Young J. Thus the directors have no power to bind the company by their acts following a winding up order. Indeed, they do not thereafter owe the company fiduciary duties, where the company is under the control of the court appointed liquidator: Lord Corporation Pty Ltd v Green (1991) 22 NSWLR 532, at 541-544, per Cohen J. It follows that, once the company has been wound up and is under the control of a liquidator, the directors cannot assert a claim of legal professional privilege on behalf of the company so as to prevent the production of documents to a third party. Equally, the directors cannot waive any legal professional privilege to which the company might have been entitled in respect of communications made by or to it.

13. Given the position of the directors, it would seem that, if the liquidator cannot assert or waive legal professional privilege on behalf of the company, no one is in a position to do so, subject perhaps to a jurisdiction in the court to direct or authorise the liquidator to assert or waive privilege in particular circumstances: Re Mineral Securities Australia (In Liq) and the Companies Act (1973) 2 NSWLR 207, at 228. Of course, the fact that the directors cannot exercise any powers on behalf of the company does not, of itself, mean that all such powers have vested in the liquidator. The extent of the liquidator's powers must depend upon the powers conferred by the Corporations Law. Furthermore, it may not be possible to conclude that the liquidator invariably has power to assert or waive legal professional privilege in relation to the corporation's privileged communications. Nonetheless, it would seem to be curious if the liquidator lacked any substantial power to determine whether privilege should be asserted or waived in relation to documents the production of which is sought by third parties, whether by way of search warrants, court order or otherwise.

14. The liquidator of a company has a number of duties: see McPherson, The Law of Company Liquidation (1987), 3rd ed, 253 ff. One duty is to investigate the affairs of the company and the conduct of its business activities: McPherson at 255-256. The liquidator is also obliged to take into his or her custody, or under his or her control, all the property to which the company is or appears to be entitled: Corporations Law, s.474(1). The Court is empowered to require, inter alia, an agent or officer of the company to pay or deliver any money, property or books in that person's hands to which the company is prima facie entitled: s.483(1).

15. Under the Corporations Law, the liquidator of a company is empowered to carry on the business of the company, insofar as is necessary for the beneficial disposal or winding up of the business; to pay any class of creditors in full, subject to the requirements of the legislation; and to make any compromise or arrangement with creditors or persons claiming to be creditors or alleging that they have a claim against the company; s.477(1). Certain other powers are conferred on the liquidator by s.477(2). These include the power to:

"(a) bring or defend any legal proceedings in the name of and on

behalf of the company;

(b) appoint a solicitor to assist him or her in his or her

duties;

(c) sell or otherwise dispose of, in any manner, all or any part

of the property of the company;

(d) do all acts and execute in the name and on behalf of the

company all deeds, receipts and other documents...;

...

(m) do all such other things as are necessary to wind up the

affairs of the company and distributing its property."

16. The exercise by the liquidator of the powers conferred by s.477 is subject to the control of the Court. Any creditor or contributory, or the ASC, may apply to the Court with respect to the exercise or proposed exercise of any of those powers: s.477(6).

17. The general power in s.477(2)(m) of the Corporations Law has received a broad interpretation. In Re Cambrian Mining Co (1882) 48 LT 114, Kay J considered the scope of the equivalent provision of the Companies Act 1862, namely, s.95. That section conferred power on the liquidator, with the sanction of the Court, in substantially the same terms as s.477(2)(m). Kay J said this (at 116):

"I am not at all inclined to limit the generality of those

words. The power is controlled by requiring the sanction of

the court, and it seems to me expedient, looking at the many

complications that may arise in winding-up the affairs of a

company, to read this section as giving to the liquidator,

with the sanction of the court, power to do anything that

may be thought expedient with reference to the assets of the

company."

18. A similarly broad view of the language was taken in Re Bairnsdale Food Products Ltd (In Liq) [1948] VicLawRp 45; (1948) VLR 264, at 267. Fullagar J said, in relation to s.191(2)(l) of the Companies Act 1936 (which was in substantially identical terms to s.477(2)(m)):

"It is well established that the word "necessary" in such a

context is not to be narrowly construed: everything that a

reasonable man might consider necessary is covered."

19. These authorities were referred to with approval by Street CJ in Eq. in Re Mineral Securities Australia Ltd (In Liq) and the Companies Act (1973) 2 NSWLR 207 at 226-228. His Honour specifically stated (at 228) that the fact that the English legislation required the sanction of the court did not bear upon the scope of the powers contained in the legislation.

"The court will hesitate before circumscribing in general

terms the scope of a liquidator's powers under s.236(2)

(corresponding to s.477(2)). Both the desirability inherent

in practical considerations, and the guidance to be derived

from comments such as those of Kay J and Fullagar J...,

indicate that, if a boundary is to be drawn, then it will be

wide ranging."

20. The broad approach to the interpretation of these provisions has recently been reiterated: Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1 at 10-13, per Brownie J.

21. The broad construction accorded by the authorities to s.477(2)(m) of the Corporations Law suggest that a liquidator ordinarily would have power to assert or waive legal professional privilege in relation to the company's communications, at least where he or she formed the view that it was in the interests of the company or its creditors to do so. However, it is necessary to turn to the authorities which have specifically considered the issue of the liquidator's power to waive privilege in relation to the company's communications. There seem to be only two Australian authorities that have specifically considered this question.

22. At first glance, Re Stanhill Consolidated Ltd [1967] VicRp 92; (1967) VR 749, might be regarded as an authority against the proposition that a liquidator has the power to waive the company's privilege. However, it is necessary to consider carefully the facts of that case and the approach taken by Menhennitt J.

23. An inspector had been appointed pursuant to the Companies Act 1961 to investigate the affairs of a company, which was in liquidation. A former solicitor of the company refused to answer certain of the inspector's questions, on the ground that he was bound to give effect to the company's legal professional privilege. In particular, the solicitor claimed that he could not be required by the inspector to answer the questions, by reason of s.367 of the Companies Act 1961. That section provided as follows:

"No inspector appointed under this Act shall require

disclosure by a duly qualified legal practitioner of any

privileged communication made to him in that capacity,

expect as respects the name and address of his client."

24. The liquidator of the company claimed that he was empowered to waive the privilege of the company in relation to the communications about which the solicitor was to be questioned. Accordingly, the liquidator contended that the solicitor was obliged to answer the inspector's questions. The solicitor, in response, claimed that the immunity granted by s.367 could not be waived at all and, in any event, could not be waived by the liquidator of the company.

25. Menhennitt J construed s.367 as laying down its own rule concerning communications which were privileged at the time they took place. The section simply said, subject to an immaterial exception, that no inspector should require disclosure of such communications. In the learned Judge's view, no subsequent waiver of legal professional privilege could affect the fact that the communications were privileged at the time they took place. It followed that they were subject to the immunity granted by s.367.

26. Menhennitt J then addressed the question of whether, even though a waiver did not take a communication out of the category of privileged communications for the purposes of s.367, nonetheless the section should be construed to mean that, if there were a waiver, its provisions could not operate. In his Honour's view, that inquiry could not be left to general principles, since it was necessary to consider the language of s.367. The section was unequivocal in its terms and, in his view, there was no room for an exception to its operation in the case of waiver: Re Stanhill Consolidated, at 752-753.

27. Having reached the conclusion that a waiver could not affect the operation of s.367 it was not necessary to consider whether the liquidator had power to waive privilege. However, his Honour went on to consider the position on the assumption that waiver could affect the operation of s.367. That gave rise to the question of whether the liquidator did have power to waive privilege in proceedings being conducted by an inspector who was investigating the affairs of the company. Menhennitt J noted that, merely because the powers of a director of a company cease, it does not follow that the liquidator has all the powers of the company. Rather, it was necessary to examine the powers entrusted to the liquidator to ascertain whether they gave him the power to waive privilege on behalf of the company in proceedings before an inspector.

28. Before addressing this question, Menhennitt J noted that counsel for the solicitor had acknowledged that there were certain cases in which a liquidator could appropriately waive privilege. These included legal proceedings instituted or defended by him in the name of the company: Re Stanhill Consolidated, at 754. It was therefore unnecessary for Menhennitt J, as his Honour said, to consider any "abstract general question" as to the nature and extent of the liquidator's powers of waiver of privilege.

29. Menhennitt J considered that the only relevant power was s.236(2)(k), which was the equivalent of s.477(2)(m) of the Corporations Law. Menhennitt J considered that to permit the liquidator to exercise a power of waiver "would involve a far-reaching step". The power to waive privilege would apply to every inquiry by an inspector. It would not be at all unusual for a liquidator to take the same attitude as the liquidator had in the particular case - that is, to indicate that he had no objection to the inspector having access to the privileged communications. Section 367, in his Honour's view, was designed to provide protection against the disclosure of privileged communications. It was only the actual company and its officers who were fully equipped to decide whether in all the circumstances, privilege should be waived or relied upon. At 755, Menhennitt J said this:

"To construe s.367 to mean that, in relation to a company in

liquidation which is being investigated, a liquidator had

the power to waive privilege would, I think, probably

produce the result that in most cases the company would

receive no protection from s.367 because a liquidator would

be likely to waive the privilege. Such a result is a

far-reaching one, and is one which, I think, should not be

arrived at in the absence of express words or a clear

indication to that effect. There are no such words and I

can find no such indication. If parliament had intended

this to be the position, one would expect something in s.367

expressly to this effect. On the contrary, the whole tenor

of s.367 appears to me to point in the opposite direction.

The general words of ss.236(2)(k) and 237(4) (equivalent to

s.479(4) of the Corporations Law) do not appear to me to

give the necessary power. Further, those powers are

referable fundamentally, I think, to the liquidation of the

company, whereas the issue as to waiver arises in relation

not to the liquidation but the investigation."

30. In my view, it is clear that Menhennitt J did not decide that there is any general limitation on the power of the liquidator to assert or waive privilege in relation to communications made to or by the company. The ratio of the case is that s.367, as it stood in 1967, did not permit application of the principle that privilege may be waived. Menhennitt J's comments on the powers of the liquidator were therefore dicta. More importantly, however, his Honour expressly did not address the general power of the liquidator to waive privilege. The reason that his Honour concluded that the liquidator could not waive privilege (assuming it was otherwise possible to do so in circumstances to which s.367 applied) was that s.236(2)(k) was an insufficiently specific source of power, having regard to the specific language and clear policy of s.367. In his Honour's view, the issue of waiver did not arise in relation to the liquidation of the company, but in the investigation. Of course, this analysis leaves open the question as to when a purported waiver of legal professional privilege is sufficiently related to the liquidation to come within the powers of the liquidator.

31. It is appropriate to note that s.69 of the Australian Securities Commission Act 1989 now provides specifically for the case where a lawyer is required to divulge privileged communications in the course of an investigation by the ASC. The lawyer is entitled to refuse to divulge such communications made by a company, unless the liquidator consents to the lawyer complying with the requirement of the person conducting the investigation: s.69(2). Thus, the liquidator, in effect, is now specifically empowered by statute to waive the privilege that otherwise might attach to the communication.

32. The second case to consider waiver of privilege by the liquidator is Commissioner for Corporate Affairs v Eastoe (1989) 7 ACLC 1051. The plaintiff applied under s.10 of the National Companies and Securities Commission (State Provisions) Act 1980 for an order directing the defendant to attend a hearing and answer questions put to him in the course of an inquiry conducted by the plaintiff. The inquiry was into the affairs of a company of which the defendant had been an employed solicitor. The defendant had refused to answer questions on the ground that they related to privileged communications between himself and the company. The plaintiff, in order to meet this claim, obtained a waiver of legal professional privilege from the liquidator of the company. Under s.10 of the Act, a legal practitioner was entitled to refuse to comply with the requirement to answer questions, unless the person to whom or by whom the communication was made agreed to the legal practitioner complying with that requirement.

33. Commissioner O'Connor QC stated that the question was whether a purported waiver of the privilege by a liquidator of a company constitutes an agreement by the person by whom the communication was made. The learned Commissioner referred to Re Stanhill Consolidated Ltd and noted that Menhennitt J appeared to accept the proposition that a liquidator could waive privilege in certain circumstances. He went on as follows (Commissioner for Corporate Affairs v Eastoe, at 1055):

"There will be many circumstances in which it is in the

interests of the company or its creditors, for the

liquidator, in the course of a liquidation, to waive

privilege. Although a liquidator does not have all the

powers of the directors, he does have wide powers including

the power to do all such "things as are necessary for

winding up the affairs of the company and distributing its

property".... Thus, in my view, if the liquidator is of

opinion that it is in the interests of the company or its

creditors to waive privilege, then he should be permitted to

do so."

34. Commissioner O'Connor went on to express the view that, if it were necessary, he would be disinclined to follow the views expressed by Menhennitt J in Stanhill. In his opinion, there was no logical reason why the right of a liquidator to waive privilege, which existed in some cases, should be confined to situations in which the liquidator sees some clear benefit to the company or its creditors. However, Commissioner O'Connor did not consider it necessary to go that far. The inquiry had been undertaken because the plaintiff suspected that offences had been committed under various sections of the Companies Code and the Securities Industry Code. Some of those sections contained the potential for the liquidator to recover monies on behalf of the company. Thus, there was the potential for a substantial benefit to the liquidator in the winding up, if he or the plaintiff could ascertain whether or not there had been breaches of those sections. For those reasons, Commissioner O'Connor concluded that, even if the liquidator did not have a general power to waive legal professional privilege, he could do so in respect of inquiries being conducted by the plaintiff.

35. Although I do not wish to express a concluded view on the matter, I think it is doubtful whether a liquidator has power to assert or waive legal professional privilege, in respect of communications to and from the company, simply as a matter of course. It is, in my view, necessary to identify a source of power for the assertion or waiver of privilege, and for the liquidator to act pursuant to that power. In some cases the source will be a specific power conferred on the liquidator by s.477(2) of the Corporations Law, such as the liquidator's power to bring or defend legal proceedings: s.477(2)(a). Once the liquidator becomes the litigant, his or her position appears to be no different in relation to compulsory process than that of any other litigant in the proceedings: see Hartogen Energy Ltd (In Liq) v Australian Gas Light Co (1992) 109 ALR 177, at 184-185.

36. Alternatively, the liquidator's powers may derive from the general language of s.477(2)(m). I do not think that the language of the sub-section is necessarily of such breadth that the liquidator can assert or waive legal professional privilege without consideration of the particular circumstances. It seems to me that the better view is that s.477(2)(m) can be invoked only where the liquidator forms a judgment that it is or may be in the interests of creditors or the company to assert or waive legal professional privilege. Without being exhaustive, I think that the liquidator could form the necessary judgment on the ground that the assertion or waiver of privilege (as the case may be) would or might be of assistance in exercising or discharging the liquidator's powers or duties. If, however, the liquidator does form that judgment, I think that s.477(2)(m) authorises the liquidator to assert or waive legal professional privilege.

37. In framing directions, it must be remembered that the liquidator is to use his or her own discretion in the exercise of the statutory powers and functions. Section 479(4) of the Corporations Law provides that, subject to the remainder of the Part:

"the liquidator shall use his or her own discretion in the

management of affairs and property of the company and the

distribution of its property".

38. In my view, it is open to the liquidator both to assert and waive legal professional privilege on behalf of the company, provided the liquidator forms the view, in good faith, that to do so is or may be in the interests of creditors or of the company. I propose to give directions accordingly.

39. Having regard to the reasons I have given I propose to give directions in the following terms, subject to any further submissions: 1. The Court directs that John Frederick Lord ("the liquidator"), in

his capacity as liquidator of Dallhold Investments Pty Limited (In

Liquidation) (Receivers and Managers Appointed) ("Dallhold"), is

justified in claiming legal professional privilege on behalf of

Dallhold in respect of documents within the custody, control or

power of the Australian Securities Commission (for which such a

claim is otherwise appropriate), provided the liquidator forms the

view, in good faith, that the assertion of such a claim is or may

be in the interests of Dallhold or creditors of Dallhold.

2. The Court directs that the liquidator, in his capacity as

liquidator of Dallhold, is justified in waiving on behalf of

Dallhold any legal professional privilege that Dallhold may

otherwise have in any documents falling within the terms of the

Search Warrant, that is Annexure A to the affidavit of John

Frederick Lord sworn 7 October 1994 and filed herein, provided

that the liquidator forms the view, in good faith, that such

waiver of privilege is or may be in the interests of Dallhold or

the creditors of Dallhold.