Restricting access to the transcript or other record of examination
19 Mr Kirschberg seeks orders of the same kind as those made in Plutus at [24] and Re Clarecastle at [88] restricting access to the transcript or other record of the examination to be conducted by a Registrar of this Court.
20 In Plutus at [18]-[23], Gleeson J analysed the interaction of s 596F(1) and s 597 of the Corporations Act as follows:
18 The interaction of s 596F(1) and s 597 was considered by Barrett J in Strarch International Ltd [2005] NSWSC 583 who explained at [18] that s 597 is to prevail over s 596F, given the opening words of s 596F "subject to s 597":
… Bearing in mind ss.597(7)(d), 597(9), 597(9A) and, in particular, s.597(14) (to be mentioned in greater detail presently), the "records" referred to in s.596F(1)(e) may include things additional to any record of the questions and answers made in conformity with a s.597(13) order. That being so, the "subject to" specification with which s.596F(1) begins is to be read as indicating that the right to inspect given by s.597(14A) in relation to a "written record made under subsection (13)" may not be curtailed by a s.596F(1)(e) direction, even though such a direction might operate to deny, allow or otherwise regulate access to some other part of the wider subject matter comprehended by the description "records of the examination" in s.596F(1)(e).
19 Barrett J concluded at [25] that there was no power to make orders under s 596F(1)(e) restricting the right to access to transcript of an examination that was the subject of an order under s 597(13):
In my opinion, the provisions in question must, despite what is said in the Emanual Investments case, be approached on the basis that s.597(14A) is a legislative directive that every person who wishes it is to have the ability to inspect any written record of question and answers made pursuant to s.597(13). A fee must be paid where the person desiring to inspect is not within s.597(14A)(a); otherwise, inspection is free of charge. There is also, in my view, a manifested legislative intention that the ability to inspect is not to be curtailed through an order under s.596F(1)(e), even though such an order may preclude access to the whole or any part of the remainder of the "records of the examination" in the wider sense referred to by Santow J; and this is so whether or not the examination is conducted in private or in public.
20 In Re Clarecastle, Ward J agreed at [85] with the conclusion of Barrett J in Strarch International.
21 However, in [Strarch] International, Barrett J adverted to the distinction between a transcript as ordered by s 597(13) and otherwise and expressed the view that this enabled a result to be achieved whereby orders precluding access to the transcript could be made. Barrett J explained at [27]-[28]:
[27] In drawing the valid distinction between a written record made under s.597(13) and the "records of the examination" referred to in s.596F(1)(e) and observing correctly that the latter comprehends the former, Santow J had no need, in the New Cap Reinsurance case, to mention another species of documentary recording expressly contemplated by s.597. I refer to "any transcript of an examination of a person that is authenticated as provided by the rules". Section 597(14) refers to such a transcript as well as to "any written record of an examination so signed by a person". It is thus clear that there may be either a written record made under s.597(13) or a "transcript" of the kind mentioned in s.597(14) - or, indeed, there may be both. The reference to a "transcript", it seems to me, acknowledges that, as was recognised by Campbell J in Re Doran Constructions Pty Ltd (2002) 194 ALR 101, an examination under s.596A is a proceeding in the court.
[28] Where a transcript of an examination is made and authenticated as contemplated by s.597(14) but there is no order under s.597(13) (and accordingly no written record of questions and answers made pursuant to an order under s.597(13)), s.597(14A) does not create any right to inspect the particular form of record of the examination, being the transcript. A transcript of the kind mentioned in s.597(14) is therefore amenable to directions under s.596F(1)(e) in a way that a record made pursuant to an order under s.597(13) is not. That is a circumstance that would no doubt be relevant to a decision as to the more appropriate way of proceeding in a particular case in which the existence of the statutory rights of inspection created by s.597(14A) gave cause for concern.
22 The distinction between a written record made under s 597(13) and a transcript of an examination referred to in s 597(14) had been earlier noted by Drummond J in Southern Cross Airlines Holdings Ltd v Arthur Anderson & Co (1998) 28 ACSR 455 at 458. The distinction was accepted by Ward J in Re Clarecastle at [31]. I agree that there is a valid distinction.
21 In Plutus, Gleeson J (at [24]) made the following orders:
(1) Pursuant to s 597(4) of the Corporations Act 2001 (Cth) (the Act), the examination of Sevag Chalabian be held in private.
(2) Direct that there be no order for a written record of the examination to be authenticated by Mr Chalabian pursuant to s 597(13) of the Act.
(3) Note that a transcript of the examination of Mr Chalabian, as envisaged by s 597(14) of the Act, is to be made for the purposes of authentication pursuant to r 11.7 of the Supreme Court (Corporations) Rules 1999 (NSW).
(4) Direct that the conduct of the examination and the transcript of the examination authenticated pursuant to r 11.7 of the Supreme Court (Corporations) Rules 1999 (NSW) for the purposes of s 597(14) of the Act, be kept confidential and not disclosed or published to any person, other than Mr Chalabian, the plaintiffs, their staff and their respective legal advisers without notice to Mr Chalabian and without the leave of the Court, until the determination of the criminal proceedings (2018/216206) against M Chalabian.
22 As I am satisfied (for the reasons set out above) that it is appropriate to order that Mr Kirschberg's examination be conducted in private, I am also satisfied that it is appropriate to make the ancillary orders sought in the form approved in Plutus and Re Clarecastle. It would be illogical not to allow the examination to be conducted in public but to allow access to a transcript, including to those prosecuting Mr Kirschberg, before the criminal proceedings are concluded. While individual creditors of CWCN will not be in a position to obtain access to the transcripts until the criminal proceedings are concluded, the liquidator will have access to the information which may be derived from that evidence and Mr Kirschberg's interest and the wider public interest in the conduct of fair criminal trials will be served. I am satisfied that that is an appropriate balance of interests.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.