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[2017] FCA 880
Federal Court of Australia
2017-03-08
Dowsett J
Original judgment source is linked above.
DOWSETT J: 1 On 18 May 2016, I appointed special purpose liquidators in the terms which appear in para 4 of my order. There has subsequently been an order made for the public examination of Mr Mensink, pursuant to the Corporations Act 2001 (Cth) (the "Corporations Act"). Mr Mensink was to appear on 22 February 2017. On 24 February 2017, on the application of the special purpose liquidators, I made orders to the effect that Mr Mensink file and serve an affidavit stating, in relation to the categories of books set out in Sch 1 of those orders whether, during his time as director of each of the respondent companies, there were paper or electronic documents in existence falling within any of the categories identified in the schedule, and if there were, their respective last locations to the best of his knowledge. On 27 February 2017 I made further orders designed to facilitate Mr Mensink's return to Australia. 2 Counsel for Mr Mensink now challenges the validity of the orders made on 24 February 2017. Counsel submits that my order of 18 May 2016 provided that the special purpose liquidators could conduct investigations into any matters set out in the schedule to the orders, including by: inspecting the books and records of a company; and conducting examinations, pursuant to ss 596A or 596B of the Corporations Act, or obtaining orders for production, pursuant to s 597(9) of the Corporations Act, or requiring statements to be provided, pursuant to s 475(2) of the Corporations Act. 3 Counsel submits that the special purpose liquidators were not empowered to apply for an order of the kind which I made on 24 February 2017. In my view paras 4(b)(i) and (ii) of the orders made on 18 May 2016 were not intended to limit the procedural steps by which the special purpose liquidators were to perform their duty to investigate the matters set out in the schedule. It seems to me that if the liquidators were conducting investigations as directed, then they were entitled to apply for such assistance as the Court was authorized to give in connection with that process. 4 In the course of submissions today, various provisions have been identified as being possible sources of a power to make the relevant order if, indeed, express authority is necessary. Those provisions include ss 475, 596A, 596D(2), 596F, 597(5B), 597(9), 597(13) and 597A(1). However, quite apart from those provisions, it seems to me that it is within the power of the Court in conducting the examination, to determine the way in which evidence should be presented to it. I do not accept that the order made on 24 February 2017 goes beyond the exercise of such a power. However, to the extent necessary, I would rely upon the sections to which I have referred. 5 I should add that the order made on 24 February 2017 was made without objection on the part of Mr Mensink. Indeed, Mr Mensink's counsel was involved in its drafting. In those circumstances, I see no basis for revisiting the order made on 24 February. To the extent that there is any such application before me, I dismiss it. 6 As to the orders made on 27 February 2017 counsel submits that the orders made on that day should be set aside on the ground that there was no jurisdiction to make them, or that they did not, in the circumstances, specify a reasonable date, time and place as required by ss 597(6A) and 597(7) of the Corporations Act. The primary attack upon the orders was based upon the assertion that it was said that the original order had not been properly signed by the Registrar. 7 The filed document headed "Amended Summons for Examination" made provision for signature by the Registrar, but was not so signed. However, attached to the document, pursuant to the requirements of the Rules and in accordance with s 37 of the Act, was a document headed "Notice of Filing and Hearing". That document was signed electronically by the Registrar. Pursuant to the Rules, it constitutes the first page of the filed document. In those circumstances, there is nothing in the point. In the course of argument, I dismissed that application. It is common ground that given my conclusion on the question of validity, no other issue arose for determination on that application. 8 As to costs, counsel for the special purpose liquidators seeks costs on an indemnity basis upon the ground that both applications were bound to fail and were, in those circumstances, unreasonably made. Counsel for Mr Mensink resists the application, largely relying upon the matters which he urged unsuccessfully before me in connection with the merits of the applications. To my mind, it is perfectly clear that both applications were doomed to failure. Quite apart from anything else, they addressed matters which ought to have been addressed at earlier hearings. Both orders were made without objection. Today's proceedings are nothing more than attempts to raise issues which, if they were to be raised at all, ought to have been raised on previous occasions. Counsel was, in effect, seeking to exploit Mr Mensink's solicitor's inability to contact him, and the fact that Mr Mensink had not bothered to contact that solicitor in order to ascertain the outcome of the previous hearings. I do not mean to reflect adversely on counsel in this regard. 9 The proceedings today were completely misconceived and doomed to failure. In those circumstances, the order for costs should be as sought by counsel for the special purpose liquidators. I order that Mr Mensink pay the special purpose liquidators' costs of today, to be taxed on an indemnity basis. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.