Bond v England A59/1997 [1997] HCATrans 387 (20 November 1997)

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. A59 of 1997

BETWEEN: ALAN BOND

Applicant

- and -

RICHARD ANTHONY FOUNTAYNE ENGLAND

Respondent

No A60 of 1997

DELORES JEAN CABOCHE

Applicant

- and -

RICHARD ANTHONY FOUNTAYNE ENGLAND

Respondent

HAYNE J (In Chambers)

AT MELBOURNE, THURSDAY THE 20TH DAY OF NOVEMBER 1997 AT 2.35 PM

MR I.D.F. CALLINAN QC: I appear with MR J.M. CUDMORE for the applicant Caboche (instructed by Ward and Partners) and in the matter of Bond I appear on my own (instructed by Cowell Clarke).

MR R.J. WHITINGTON QC: I appear with my learned friend MR J.D. KARAS for the respondent in both matters (instructed by Fisher Jeffries).

HIS HONOUR: Now, gentlemen, why should I not impose time limits on the hearing of this application? You may take it that I have read the papers, that I am generally familiar with them. I have read the reasons of the Full Court and to a less full extent the reasons of Debelle J and am generally familiar with the issues.

MR CALLINAN: I hope that I can put our situations fairly shortly, your Honour. I am in your Honour's hands with respect to time.

HIS HONOUR: Well, perhaps shall we let the threat quietly swinging in the breeze, Mr Callinan, and see what becomes of it.

MR CALLINAN: Certainly, and I am indebted to your Honour's intimation that you have read the papers. Your Honour, may I inquire, however, whether you have read the decision of yesterday by - - -

HIS HONOUR: Yes.

MR CALLINAN: Yes. Your Honour, as we would perceive it the position is that we do have the benefit of all relevant findings, as it were, not that I suggest that the findings on the stay are binding upon your Honour here but if your Honour would, with respect, be unlikely to interfere with them we would suggest. But the position seems to be after yesterday that there is only one issue and that is the issue as to our prospects of obtaining special leave.

HIS HONOUR: Well, whether or not that is so at least in the first instance I would be much assisted by the argument focussing on that issue.

MR CALLINAN: Yes. Your Honour, as we understand it it really seems to have been put by single Justices of this court in three different ways with perhaps only shades of difference between them but not insubstantial prospects at success. Substantial prospects of success, or as McHugh J put it in Collier's case, at a real chance or an arguable case. Your Honour, we would submit that that is the test to be preferred.

In logic it is the test to be preferred because when one is making an application for special leave it goes only to three Justices of this Court and the Court at that level is still deciding what is essentially a threshold question and I do not need to repeat that point. This also is really a situation in which your Honour is on the threshold of another threshold.

So if there is any difference we would submit the test of McHugh J is to be preferred. However, we make the submission that on any of the three tests which have been suggested we satisfy the relevant criteria. Your Honour, from that point then may I proceed to the draft summary of argument which your Honour has before you and could I emphasise that it is a draft summary only.

HIS HONOUR: Yes.

MR CALLINAN: Your Honour, on the question of special leave there has been no consideration of the relationship between sections 596(C) and 596(D) of the Corporations Law, as your Honour is well aware is effectively the law for the whole of Australia on these matters. So in that sense this is a point of general importance. Your Honour, I only wanted really to refer to one case that is not in our summary and it is a case that is not directly on point. But recently the High Court in Queensland v J.L. Holdings Proprietary Limited [1997] HCA 1; (1997) 71 ALJR 294, and we have a copy of that which I will hand up if we may, your Honour.

HIS HONOUR: Yes.

MR CALLINAN: In a joint judgment by Dawson, Gaudron and McHugh JJ, their Honours stressed the importance of in effect not allowing case management to interfere with the exercise of proper judicial discretions and the application of principles. Now, why I point to that, your Honour, is because an analogy can be drawn between that situation and the situation here as it appears from page 14 of the reasons for judgment of the judge in the Full Court who wrote what became the reasons of the court, Lander J. May I take your Honour to that in the book; your Honour should have the book.

HIS HONOUR: Yes, I have that.

MR CALLINAN: Behind tab 2 page 14. The circumstances in which the somewhat cursory disclosure was made are set out in the quotation at paragraph (xxiv) of the affidavit there. Your Honour may have had an opportunity to read it. But after the relevant order had been made or after the first of the relevant orders had been made, in the course of a conversation a disclosure of a necessarily imprecise kind was made regarding - - -

HIS HONOUR: Which brings me to a point, which is the relevant order here? Which is the order where you say there has been an asserted failure to comply with 596C?

MR CALLINAN: We say all of them, your Honour, all of the orders invoke - - -

HIS HONOUR: The first was made before the action was brought, was it not?

MR CALLINAN: Yes, but at a time when there was clearly a settled intention to bring the action and your Honour, I can say that with confidence because the proceedings were instituted before any examinations were conducted at all and when the proceedings were instituted a very detailed, certified statement of claim was delivered.

HIS HONOUR: I have looked at the statement of claim at least in its amended form.

MR CALLINAN: Well, your Honour will see that the amendments are marked up. There is a fairly clear indication of the very far reaching scope of the allegations and indeed the precision with which a number of them were made.

HIS HONOUR: The contentions that you make are contentions, are they not, in this respect, that proceed from the unstated premise that a want of disclosure in the affidavit is irremediable?

MR CALLINAN: Yes, your Honour, if it goes to a material fact.

HIS HONOUR: Leave aside the subject matter, there may be debate whether it is confined to material or any non-disclosure.

MR CALLINAN: Yes.

HIS HONOUR: But you say want of disclosure of a relevant kind is irremediable?

MR CALLINAN: Yes, and I say that, your Honour, say the former because we do have the benefit of findings in the Full Court that it was a material matter.

HIS HONOUR: I understand that. Thus does it follow that on your contention that if the application had been made supported by an affidavit not referring to the action but with the file in the then issued action produced to the master all subsequent proceedings in this matter would be fatally flawed?

MR CALLINAN: May I answer it in this way by saying that what was essential here and what was irremediable was the failure to disclose not only the fact of the action or the settlement intention in relation to it but also the highly detailed circumstantial and precise case, both circumstantial and precise case, which the plaintiff was able to plead without any examinations.

May I draw attention to the fact that the case that is pleaded, although it is not a course of action, is a criminal conspiracy among other things. Having regard, your Honour, to the constraints upon pleaders in relation to matters of that kind, it obviously in this case assumes a very great importance. But there is a significant matter of principal underlying all of this and it is that there be compliance which is in turns a mandatory provision and we would submit for a very good reason. There is no guarantee, for example, that the same judicial officer is going to be dealing with this matter at all times.

HIS HONOUR: But mandatory compliance that amounts to a substantive requirement never capable of remedy whether under 13(22) or at all?

MR CALLINAN: No, your Honour, the cure is to make another application. There is nothing to prevent the liquidator from making an appropriate application on proper material at any time. It may be that on the making of any subsequent or other applications that the conduct of the liquidator on former occasions may be relevant, I do not need to establish that, but that is the proper way to remedy it.

HIS HONOUR: But if the point is good it is a point that means if the omission comes to a tension of the examinee only very late in the peace, which is quite possible given the practice of sealing up the affidavit, the proceedings are fatally and irremediably flawed.

MR CALLINAN: Those proceedings are, yes.

HIS HONOUR: Yes.

MR CALLINAN: But - - -

HIS HONOUR: That is a startlingly wide proposition, Mr Callinan, which seems to me to be implicit in the contention that now is made and - - -

MR CALLINAN: I can put - - -

HIS HONOUR: - - - and an essential element of it.

MR CALLINAN: I can put the matter more narrowly and it still remains a matter of public interest and importance and I can narrow it by putting an important and material fact, such as a sufficiency of information, to plead criminal and other fraudulent conduct. It is still in those circumstances a very important point. But may I try to deal with the matter upon the broader basis which your Honour has put to me. With respect, there is nothing unusual about that, there are many instances in which when people's rights are effected very strong propositions may be advanced in favour of strict compliance.

I mean, there are many areas of the law. Otherwise there may be no distinction, with respect, between mandatory requirements and directory requirements on the other hand. The law repeatedly makes that distinction. As I say the cure is for the liquidator to make a proper application in a proper way which he may do at any time, as I understand it, whilst the liquidation remains incomplete.

HIS HONOUR: Where in the words of 596(C)(i) do we find the requirement, understanding as I do that it is a person must file an affidavit, what is there within the words of the sub-section which oblige us disclosure by one method only, namely the affidavit.

MR CALLINAN: Your Honour, may I just go to the section, please. I go to 596(C)(i), a person who applies must file an application that supports the application and complies with the rules.

HIS HONOUR: What words in that sub-section perform the work which now it is sought them do, namely say that any want of compliance, any want of disclosure, rather, is fatal?

MR CALLINAN: Well, your Honour, one must file an affidavit and it is easy to imply the words, indeed necessary, we would submit, to imply the words: a proper affidavit, or, a sufficient affidavit - otherwise it becomes meaningless - a sufficient affidavit, and in that respect an affidavit that omits an important material or indeed a material, if one wants to put it at a little lower level, a material matter is not a proper or sufficient affidavit.

It must be an affidavit that relates to the matters in question, obviously one must give the sub-section that meaning. The matters in question incorporate relevant or material matters just as the affidavit in respect of an application for an interlocutory injunction must disclosure or indeed an interim injunction must disclose relevant material matters.

HIS HONOUR: The reason asserted for the need to disclose settled intention and a degree of specific knowledge, if I can use those shorthands in relation to the action, is that they may cast light upon the purpose that the liquidator has in seeking compulsory examination.

[2.50pm]

MR CALLINAN: Yes, but not exclusively.

HIS HONOUR: What other light, or what other significance do those facts have that make them facts of a kind which you contend ought to have been disclosed?

MR CALLINAN: The fact that this is an unusual coercive process which is an imposition upon the rights or interests of an examinee and therefore matters that might impinge upon that or relate to that are also material matters. Your Honour will appreciate with respect, I mean no disrespect when I say that I do have the benefit of a finding by three Justices in the Court below not at this level of course, but three Justices in the Court below, that this is a material matter that should have been disclosed.

I, therefore, do have a finding in effect that this is a matter within the purview, as it were, of that subsection. Now, this Court might take a different view of it, but I do have three Judges who say - - -

HIS HONOUR: My concern at the moment is not to test the validity of that finding. For the moment I am content to proceed on the basis that it was a material or important or whatever epithet we apply - - -

MR CALLINAN: Yes.

HIS HONOUR: - - - fact to disclose. But the reason that it is important may bear upon the reading that is to be given to the sections in this way: that if it is important to disclose this fact because it bears upon, again using shorthand, the validity of the purpose that the liquidator may have, or the propriety, if one can use that in a rather more neutral way, of his purposes, is not the examinee sufficiently protected by a construction which would enable the examinee to challenge those purposes upon this fact coming to light, rather than by a reading which would attribute the fatal consequences to an apparent want of form that would apply in the case that I earlier mentioned, where for example the file is produced to the Master and the Master has before him or her the whole of the action that has been instituted.

MR CALLINAN: Your Honour, such a reading would, we would submit, really corrupt the operation of the subsection because it would produce the result that liquidators would be entitled to take the position that they would file an affidavit sufficient to justify the making of an order, but never containing relevant or important or material facts.

Now, in some cases the fact that they have not been disclosed will never come to the attention of the examinee, it was in effect a coincidence that it did happen in this case, but there will be many cases in which it will not come to the attention of the examinee and indeed, your Honour, there will be no public record of it at all anywhere. Now, that is the real mischief and it is a very serious mischief and it arises starkly in this case, we would submit.

HIS HONOUR: I understand how you say it arises in Ms Caboche's case. Is there not the logically prior question in Mr Bond's case of whether he should have had an extension of time within which to bring his application to set aside?

MR CALLINAN: Your Honour, it is different in Bond's case for that reason, with respect, but if the order was improperly made and it was improperly made for all purposes, and the absence of a timely challenge to it cannot cure its deficiency. If there was no proper exercise of the discretion then that gives rise to an incurable deficiency. Could I also say this, your Honour - - -

HIS HONOUR: Sorry, no proper exercise of which discretion?

MR CALLINAN: The discretion to make an order - perhaps I put that a little differently from the way in which I should. If I could put it this way. If in fact the Justice making the order was not properly informed of the matters of which he should be informed, then that taints the order for all purposes.

HIS HONOUR: Why then should not application be brought within the time fixed?

MR CALLINAN: Well - - -

HIS HONOUR: Application set aside?

MR CALLINAN: One does not know, your Honour.

HIS HONOUR: No explanation was offered here as I read the reasons of the Full Court why application was not brought timously and that being so the court held that no deficiency in exercise of discretion to refuse extension was shown. Why is there an arguable case?

MR CALLINAN: Well, your Honour, the matter was put this way, as I understand it, by the Full Court. The Full Court said that there was a battery of lawyers advising Bond.

HIS HONOUR: An expression that could be taken in several ways, Mr Callinan, we will take it charitably, shall we?

MR CALLINAN: Yes, your Honour. But it really put a case against us that in a sense was not argued. It was apparent that Bond was assisted by legal advice but too much weight was attributed to that fact - I do not want to get into discretionary considerations but as against the fact that the man was serving a sentence of imprisonment. Also, your Honour, the circumstances in which an examination of this kind occurs are circumstances in which - and it is not always possible to be aware and to be alive to all of the matters that have to be considered.

HIS HONOUR: But was any such case essayed at first instance? As I read the Full Court judgment they say no such case was attempted, therefore no error shown in discretion. Am I failing to take account of something?

MR CALLINAN: I think, with respect, your Honour, is correct. May I just check that matter because my learned junior is closer to that aspect of it than I am.

HIS HONOUR: Yes.

MR CALLINAN: Your Honour, all I say in relation to that is that there was a challenge to the order at Karnet Prison but to put it at the best for us it did not - I think I have to say that it did not raise this matter, but there was a challenge, your Honour, and there was - - -

HIS HONOUR: It seems to have been a very curious day, but there we are.

MR CALLINAN: It must have indeed have been, your Honour. Could I say this, your Honour, prison is not the best place perhaps to be taking all the points that might be available to one.

HIS HONOUR: It is not so long since I did a tour of the Victorian prisons, Mr Callinan.

MR CALLINAN: Yes, your Honour, well I imagine there is not a great deal of difference between them.

HIS HONOUR: No.

MR CALLINAN: Can I say this, your Honour, there is that aspect of the matter that is different from Caboche but if in fact the court is binded to grant a stay, or could I put it this way, if the court were minded to grant the application for special leave, it would be rather unlikely, in my respectful submission, that all other things being equal, as indeed they are, except in the case of Bond the failure to comply with the time limit, it would be unlikely that three Justices of this court would grant special leave to Caboche but not to Bond.

The points are identical points in all relevant respects. The prejudice is exactly the same. It would seem to be rather, with respect, a somewhat meaningless punishment to be imposed upon Bond, simply because it may well have been, and I do not suggest that the material discloses this one way or the other, it may have been an oversight by his lawyers, it is impossible to say. But there does not seem to be any personal culpability on Bond. Your Honour would be familiar with extension of time cases when the courts have been very ready to draw a distinction between the culpability of the lawyers in delays and the like, the culpability of the lawyers on the one hand and the client on the other.

HIS HONOUR: But unless an arguable case of error in the Full Court in Bond's case is demonstrated, a grant of leave would be futile?

MR CALLINAN: Well, I would put it this way, your Honour, in relation to the time point. In view of any absence of real prejudice in any way at all to the liquidator, there is no reason not to extend the timing of the case. Otherwise it just becomes the infliction of a disadvantage upon the litigant for no good reason.

HIS HONOUR: But the jurisdiction of this court is only the jurisdiction to make such order as the Full Court should have made. It is not original.

MR CALLINAN: Well, we would say this, that the Full Court should have made an order extending the time because of the absence, the overwhelming absence of any prejudice to the liquidator. Your Honour, that is so even in the absence of an explanation by the lawyers. Otherwise, as I say, it simply becomes infliction of a penalty, deprivation of perhaps the right to argue the case, for no good reason. I will not repeat that.

HIS HONOUR: Yes.

MR CALLINAN: If again one could draw the analogy between the case management case that I cited at the beginning. Your Honour, I do not want to take up any undue time, I am conscious of what your Honour said at the outset and I am aware that your Honour has read the summary. Your Honour will appreciate that it is a draft summary only.

HIS HONOUR: Yes.

MR CALLINAN: Could I say this in relation to it, there is no suggestion here with respect that there is any temporising on our part. We are prepared in any way at all to facilitate the very prompt disposition of the applications for special leave if the stay is granted. Your Honour would be aware that in preparing summaries of argument we are far in advance of the requirement under the rules. I think there are 28 days or something of that order.

HIS HONOUR: I understand that but as a matter of practical reality barring extraordinary arrangements you would not get on, I think, until March or perhaps April of next year at the very earliest.

MR CALLINAN: The consequences of very crowded court lists should not really be visited on the litigant.

HIS HONOUR: I understand that. You have dealt, I think, Mr Callinan, with two points. One, what I might call the 596(C) point, two, the question of extension of time for Mr Bond to apply to set aside. What of the other general area of the application for special leave, namely improper purpose. That, as I understand it, is the second principal thrust of the application is it?

MR CALLINAN: It is, indeed, your Honour, and your Honour, we have not attempted to be comprehensive at pages 16 and 17 of our draft summary in the Caboche matter, but we do give an indication there of the different judicial pronouncements in relation to the matter. Your Honour, one very strong statement, the Chief Justice of New South Wales, Gleason J in Hong Kong Bank which we referred to at page 17 puts the position one way.

We have got what we would submit is something of a misreading by some of the subsequent courts of Hamilton v Odes. There is certainly, we would submit, an area of unsettled law and it is not merely a matter of application, it is the various statements themselves that have been made from time to time do involve some underlying differences of principal, and not merely in approach but as to what the principal itself is.

HIS HONOUR: Other than the bare fact of issue of proceedings in the detail which we see in the amended statement of claim, what is there upon which the applicant would rely in support of the contention of improper purpose?

[3.05pm]

MR CALLINAN: I think your Honour has summarised it. The only addition I would make to that is that the detailed nature of the applications, including the certification thereof of the correctness of them, which go exclusively to what is a matter of criminal conspiracy, is serious criminal fraud.

HIS HONOUR: Yes.

MR WHITINGTON: Statements of claim.

MR CALLINAN: Statements of claim. Thank you. Correct, Mr Whitington.

HIS HONOUR: Am I right to read Hamilton v Oades is holding that the fact that criminal proceedings were then pending I think, were they not?

MR CALLINAN: Yes, they were, your Honour.

HIS HONOUR: But the fact that criminal proceedings were then pending was not of itself sufficient to demonstrate improper purpose?

MR CALLINAN: Not in that case. But, your Honour, the statements of principle there, well we would submit that what has happened is the reasons of - parts of the reasons of Mason CJ have been taken out of context. For example, there is a reference, which is often relied upon, to a judgment of Street J of the New South Wales Court of Appeal. But in exactly the same passage, for example, there is a reference to the decision of a Queensland Justice, Sterrington J, in Milander, and we set out that. It is at page 17:

The Court will be alive to the possibility of oppression where the application is merely to advance the action, whether actual or proposed.

So it is interesting that Mason CJ cited that case in exactly the same passage as he cited the passage from Roberts of Street J, the Chief Justice of New South Wales, when there is a very clear difference between them. And it is not easy to reconcile it.

HIS HONOUR: Yes.

MR CALLINAN: So, your Honour, we are dealing with a code for the whole of Australia, the Corporations Law. We submit that - and given the prevalence of which your Honour would be well aware of public examinations, examinations made under this section, a very grave intrusion upon what are otherwise the rights of people, it does raise an important matter. So it is not as if we have, we would submit, only one ...(indistinct)... this case, we have more than one.

HIS HONOUR: Yes.

MR CALLINAN: And my learned junior reminds me, and it is right with respect to say, that the facts of this case are neat and clear. It is not obscured by factual complications which sometimes constitute an impediment to a grant of special leave. And, your Honour, all we are asking for at this stage is a stay. This is not, as your Honour well appreciates, the application for special leave itself.

HIS HONOUR: Yes.

MR CALLINAN: Your Honour, I think I would be repeating myself if I said more. Your Honour has read our outline.

HIS HONOUR: Yes. Thank you, Mr Callinan. Yes, Mr Whitington.

MR WHITINGTON: If your Honour pleases. As we read the special leave applications, each applicant is identified, four points or grounds. The first is the construction section 596B. The second is that non-compliance with 596C is not a procedural irregularity. Now essentially those two points are linked because if the applicants are wrong about 596B, then it almost inevitably follows that failure to comply with 596C will be a procedural irregularity. The third point is improper purpose. The fourth point in the case of Mr Bond is the refusal to extend time.

And in the case of Ms Caboche, she has a point that there was non-disclosure prior to an order made on 19 February 1996, and that that is fatal non-disclosure. That is not a point addressed in the draft special leave argument. Nor addressed today. And in any event, we say it goes nowhere because Debelle J found that that order expired through a fluxion of time, and the operative order was a later order, 18 March 1996, by which time the disclosure had been made.

Now can I say to your Honour that we answer those points shortly in this way, in reverse order: Dealing with the extension of time point in the case of Mr Bond, it is our submission that that is fatal to his application, that that is a bear matter of practice and procedure involving a discretion in the judge at first instance. And it was upheld by the Full Court and no error of principle has been advanced. Nor could any be advanced on this application.

The other day on the stay application before Lander J, Mr Bond's counsel purported to raise a new point, and his Honour addressed that at page 9 of his reasons on the stay. And he made the point that the new point being raised to justify an extension of time was truly new and had not been the subject of the notice of appeal. If your Honour goes to page 9 at the top of the page, I simply draw that paragraph to your Honour's attention.

HIS HONOUR: Yes.

MR WHITINGTON: Now in those circumstances, we say that this Court should not be detained by an appeal against a refusal to extend time, particularly where it relates to a local provision and all the provisions setting time limits - or some of them are different. They are different in the Federal Court as opposed to in the South Australian Supreme Court. And so really it is very much a local matter. And if Mr Bond cannot succeed on that point, then that is a complete answer to his application.

Can I then come to the ground that involves an improper purpose? As we perceive the point, and it is made more clearly in the special leave submissions filed - or provided to us on behalf of Ms Caboche, then in Mr Bond's submissions the point being made is apparently that, while the liquidator may examine to collect information for the purpose of assessing the claim in existing proceedings, he may not do so for the purpose of presenting that evidence in those proceedings. So a very fine distinction is drawn.

And we have a number of responses to that. First, we say that distinction is not warranted in the authorities and, secondly, and perhaps more importantly, there is no finding below that that the liquidator in fact has or at any relevant time had the purpose characterised by our learned friends as the offensive purpose. There is no finding at all that the liquidator has that offensive purpose. That is, that his predominant purpose is to collect evidence to put against, for instance, Mr Bond at trial. And on the authority of this Court in Williams v Spouts, the onus of proving the improper purpose is on the applicants. Now the applicants take that very fine distinction in the face of section 597(14). If I could ask your Honour to turn it up quite shortly?

HIS HONOUR: Yes.

MR WHITINGTON: So apparently it is the applicant's case that, not withstanding the terms of that subsection, the liquidator can embark upon an examination knowing that ultimately he will be able to use the transcript of the evidence in proceedings, knowing he can use it but, if he actually has that very purpose in mind when he conducts the examination, it is an offensive purpose. And we say that is a very curious distinction to draw. Moreover, we say that the matter is answered by the authority my learned friend referred to, Hamilton v Oades, which is reported in [1989] HCA 21; 166 CLR 486. It is divider 5 in the book of authorities we have provided to the Court.

HIS HONOUR: Yes.

MR WHITINGTON: I think it has got a blue cover - a white cover, I am sorry.

HIS HONOUR: Put it this way: Hamilton v Oades is open and beside me, yes.

MR WHITINGTON: Yes. And if your Honour goes to page 496 at the bottom, at about eight lines from the bottom, your Honour will see that the Chief Justice is talking about two important public purposes.

HIS HONOUR: Ye.

MR WHITINGTON: One is to enable the liquidator to gather information that will assist him. That involves protecting the interests of creditors. The other is to enable evidence - and I stress the word "evidence" - and information to be obtained to support the bringing of criminal charges in connection with the company's affairs. So in other words, he has in mind in the criminal context that the liquidator can have the very intention or purpose of collecting evidence to use in proceedings.

And if one reads over the page, it is clear that his Honour goes on to embrace the use of that evidence in civil proceedings. Now, in our respectful submission, while there might be - while one might find in the authorities different modes of expression of this point, in the end there is no relevant conflict in the authorities. And the last major case to be decided was the decision of the Court of Appeal in New South Wales in the Hong Kong Bank case. And that is on my learned friend's list. And this Court refused special leave to appeal in that case.

Then, thirdly, if I might come to the construction point? In our respectful submission, no plausible argument has been advanced for interpreting section 596B as being subject to a precondition, but that there must be an affidavit under section 596C which makes the fullest and most complete disclosure even of adverse circumstances before the very jurisdiction in 596B can be exercised. And your Honour will remember, and your Honour dealt with this in the New Zealand Steel case, that 596B is really no more than the child of - I am sorry, 596A and B are the child and progeny of 597, the predecessor section. And could I hand up to your Honour the text of section - we have got them in divider 9 of our authorities, your Honour.

HIS HONOUR: Yes.

MR WHITINGTON: I simply remind your Honour of the section because it is clear from subsection (2) of section 597 that it has been broken up by the draftsman and segregated to form 596A and 596B of the present legislation, cast in slightly wider terms more favourable to the examiner. But the important point is that, at the time that the Court had jurisdiction under section 597 in all its precursors, there was no statutory requirement for an affidavit. That was only introduced in the 1993 amendments.

And we say that the history of the matter discloses that 596C was introduced simply to standardise the practice around Australia. Now we say there is a further answer in respect to my learned friend's case, and in a sense he has conceded this. And that is, that in any event the matter has been dealt with afresh in both cases. In the case of Mr Bond, the hearing before Debelle J was not an appeal, but it was an original hearing - or a first instance hearing of an application to set aside or review a Master's ex parte order that Mr Bond attend for examination.

HIS HONOUR: I do not follow that. You will need to explain it further. Is it simply that an appeal from a Master to a Judge is by way of a rehearing de novo?

MR WHITINGTON: No, your Honour. In the case of Ms Caboche, that is what the procedure was. But in the case of Mr Bond, by agreement of the parties, instead of going back to the Master to have him reconsider the order in the way one usually does on an inter-parties basis, the parties consented to the matter being referred to Debelle J.

HIS HONOUR: So instead of the application to set aside going back to the Master, it went up with the appeal by Ms Caboche?

MR WHITINGTON: Exactly, your Honour.

HIS HONOUR: And the appeal by Ms Caboche, is that an appeal by a rehearing de novo under the relevant rules?

MR WHITINGTON: Yes it is. And so we say that in each case, and particularly in Mr Bond's case, the discretion has been exercised afresh based upon - - -

HIS HONOUR: And although the form of the order may be appeal dismissed. That is a question of form of order rather than substance.

MR WHITINGTON: Precisely, your Honour. And in each case, there was before the Court a full disclosure of the matter complained of by the applicants.

HIS HONOUR: On affidavit?

MR WHITINGTON: On affidavit and the subject of cross-examination of the deponent of the affidavit who had made the disclosure which cross-examination was conducted in effect on a voluntary basis. That is, the deponent volunteered himself for cross-examination and there was no opposition.

[3.20pm]

HIS HONOUR: Could you have your junior turn up the rehearing de novo rule, unless you have it off the top of your head. Let that be done and you go on with your argument, Mr Whitington.

MR WHITINGTON: Yes. Thank you. I was going to make a point as a corollary of that, that my learned friend has made for me. He said the cure is to make another application on proper affidavit, and in a sense we wanted to underscore that point because we would submit that really this court would not want to be concerned with what is really a barren or academic matter in that at the end of the day both of these officers or people involved in the affairs of SECL have to be examined. Theoretically we could accede to the appeal and as my learned friend says, commence with a fresh application and a fresh affidavit, and the only argument then would be about the costs of what has gone before. And this court does not concern itself with matters going purely to costs.

HIS HONOUR: Notwithstanding that yesterday in chambers I seemed to be acting as the taxing officer. There we are. That is an entirely separate matter.

MR WHITINGTON: I apologise for rubbing salt into that particular wound, your Honour, but I think as a matter of principle this court does not undertake appeals which really only relate to costs and in a sense that really is the practical outcome if an appeal were allowed in this case. Now, finally can I come to the matter of procedural irregularity. We have dealt with this in our written submissions which are - - -

HIS HONOUR: Well, if it is procedural irregularity rather than substantive defect, 13.22 picks it up and unless there is harm, it stands. It stands until set aside.

MR WHITINGTON: Exactly, yes, your Honour, unlike subsection 4.

HIS HONOUR: Yes.

MR WHITINGTON: So we say that if my learned friend could not persuade this court of the rightness of his submission in respect of section 596B, that is that there is no jurisdiction without a full and complete affidavit, then it follows almost as night follows day that the absence of full disclosure is a mere matter of procedure and it is an irregularity which is picked up by subsection 2 of section 13, 122 and the Full Court dealt with the matter correctly. Your Honour, we cannot turn up immediately the Supreme Court rule.

HIS HONOUR: To use Victorian terms, you would find it in chapter 1 rather than chapter 5. That is would you find it in the general rules of civil procedure of the court rather than in the Corporations rules?

MR WHITINGTON: Yes, you do. You find it in what we call the Supreme Court rules and it is in either rule 95 or rule 97 but there is a rule specifically dealing with appeals to a single judge from a master.

HIS HONOUR: Does that part of the rules have application in Corporations matters?

MR WHITINGTON: Yes.

HIS HONOUR: That is, is there a pick-up in the Corporations rules insofar as the rules do not otherwise provide the rules, again in Victorian terms, of chapter 1 of the rules apply, that kind of provision?

MR WHITINGTON: Yes, I think it is either rule 1 or rule 3 of our Corporations Law rules, which I think are a model code of rules throughout the Supreme Courts.

HIS HONOUR: The Victorian rules are, Mr Whitington. There are certain local home rules that you have got to understand and that is one.

MR WHITINGTON: Yes, I do not think I can add to that.

HIS HONOUR: Rule 6, subrule 1 of the Corporations South Australia rules, which are the '93 rules, and I assume are the relevant rules, would apply Supreme Court rules for time being in force. I must confess it would not astonish me if the general rules of procedure found that appeals to a single judge were by way of rehearing but no doubt those are matters that your opponent can pick up if they are challenged.

MR WHITINGTON: Yes. I simply invite your Honour's attention to a passage in Dobell J's reasons in the Caboche matter, which is in my learned friend's book of common documents behind divider 4 at page 17. Does your Honour see the paragraph near the top starting, "Even if"?

HIS HONOUR: Yes.

MR WHITINGTON: Of course, his Honour does not make the counterpart comment in the Bond matter because there he was dealing with it ab initio.

HIS HONOUR: Yes, I understand.

MR WHITINGTON: They are our submissions, if the court pleases.

HIS HONOUR: Yes. Thank you, Mr Whitington. Mr Callinan.

MR CALLINAN: Your Honour, dealing with the point about the matter being a rehearing may I remind your Honour what happened. It was not that a proper affidavit was there and then filed on the rehearing. all that happened was that an affidavit was filed which alleged that an informal disclosure had been made at some stage after the litigation had started. That is an entirely different matter from saying that a proper affidavit had been filed.

HIS HONOUR: Was there an affidavit then before Debelle J which one, mentioned the fact of issue and/or two, exhibited the form of statement of claim as then it stood?

MR CALLINAN: I think the answer to that is clearly yes, but, your Honour, let me deal with the matter of purpose because there is some ambiguity about that and it is relevant not only to this matter but also to the argument that my learned friend advanced, which was to the effect that no improper purpose is shown. We would submit, for all the reasons I have already said, we do not have to go as far as that but let me just remind your Honour that at page 14, and I will not read it, but that is where the - - -

HIS HONOUR: Fourteen of?

MR CALLINAN: Of the reasons for judgment of the Full Court - set out what was disclosed and what was disclosed was that there had been an informal but necessarily incomplete disclosure at a time after the institution of proceedings but then, your Honour, I wanted to go to the findings that were made in relation to purpose, and there is a serious problem about those. Could I take your Honour back then to page 9 of the reasons of Lander J in the Full Court. In the third paragraph his Honour says:

I shall deal with the matter of material non-disclosure later, but his Honour recorded in his reasons for dismissing the appeal that the affidavit showed that the liquidator...

This is what the affidavit said:

that the liquidator asserted his belief that SECL may be entitled to institute ...(reads)... to assess the prospects of success.

The language there, "may be entitled to institute proceedings" when it was clear that there was a settled purpose and indeed we have got the finding in relation to that, then if your Honour goes to the next page of the reasons in the Full Court, page 10, the second paragraph:

The examinations were for the purpose, so the Master recorded,...

And the source of this on any view does not appear to be an affidavit source:

...of ascertaining the whereabouts of particular artworks being, it was said, assets of SECL.

So there is the conflict, and as to the second aspect of it we cannot explain it but there is the conflict with respect to purpose. What we do know beyond any doubt is that the purpose could not have been a purpose of examining people with a view to deciding whether to bring litigation or not. On any view of it, it could not be that, and there is this conflict.

HIS HONOUR: Did Debelle J in the course of determining the appeal and application to set aside that were before him come to exercise afresh the discretion, if there be one, that had to be exercised under 596B?

MR CALLINAN: Your Honour, we would submit not, because we would submit that what his Honour effectively found was that the Master was entitled to make the order or rather, that the order was justified because of the earlier informal disclosure. That is the way we would put it.

HIS HONOUR: That would suggest that the appeal process before him was appeal, strictly so called and not appeal by way of rehearing de novo, for if it were appeal by way of rehearing de novo, the discretion would fall for re-exercise, whatever happened.

MR CALLINAN: I do not want to mislead your Honour. I think the matter is ambiguous in that respect. I think it is a little difficult to say precisely one way or the other, but I do think I was entitled to make the submission that I earlier made.

HIS HONOUR: Mr Callinan, I would not wish you to be under a misapprehension. My immediate impression of the matter is that if Debelle Js hearing were a rehearing de novo, the relevant affidavit material to be considered to identify possible deficiency or no, is all the material before him and what occurred before the Master is irrelevant. That is my impression at the moment and I expose it so that you may disabuse me of it if I am wrong.

MR CALLINAN: I am grateful for your Honour's informing me of that. I am equally anxious not to mislead your Honour by mischaracterising in any way the nature of the proceedings and as I say, I think there was some ambiguity about them. So I shall attempt to deal with the matter on both bases. Perhaps your Honour understands my submissions if it was by way of appeal and I need not repeat them.

HIS HONOUR: Yes.

MR CALLINAN: If the matter is by way of rehearing and there is a fresh exercise of the discretion, we would submit that again if your Honour looks at the nature of the disclosure, which is set out on page 14 and that is the disclosure to Debelle J, his Honour did not merely have regard to what was put before him afresh. He inevitably and necessarily did have regard to the proceedings before the Master. Your Honour's view, with respect, is probably correct, he did not have to, but once he takes it into account one could not say he was wrong to take it into account and it becomes a relevant matter that has to be considered. But on any view of it, what has happened has been, we would submit, if our other submissions are correct, a misuse of the court process, but I do not want to repeat myself in relation to that.

HIS HONOUR: Yes, I understand.

MR CALLINAN: Your Honour, could I just say something about the question of the nature of the provisions that we point to. My learned friend made a submission to your Honour that the purpose of the section was merely to produce uniformity. With great respect, that just is not right and cannot be right. The requirement of an affidavit seems to have been as a direct consequence of the Law Reform Commission report and we set that out in page 8 in paragraph 28 of our summary of submissions and I will not repeat that. And, indeed, that it is an important state of proceeding or matter really appears, your Honour from section 1322 of the Corporations Law. It is at page 1256 of my copy, where the section says in paragraph (b) the subsection (i), paragraph (b):

A reference to a procedural irregularity -

and I accept it is an inclusive definition -

includes a reference to the absence of a quorum -

and I will not read any more of that:

(ii) a defect, irregularity or deficiency of notice of time.

Now, the matters referred to give some indication of the nature of what the legislature considered to be the procedural irregularity and it is not something. It is something much less than a mandatory requirement in the Act itself. And that that is so, your Honour. It further appears from subsection (iv) which does give the court a power to excuse non compliance with the statute itself.

So internally section 1322 makes a clear distinction between substantive provisions and mere irregularities. We submit this is a substantive provision that there may need well to be an application under 1322(iv) and we would - I do not have to go into it but it will be an entirely different set of circumstances that would fall to be considered on any fresh application.

This Court can be satisfied with respect that it would not be a foregone conclusion by any means that in the events that have happened there would be any latitude allowed to the liquidator or perhaps very little latitude allowed to the liquidator on an application under 1322 subsection (iv).

HIS HONOUR: Assume none were to be allowed and assume further that your point were good, is there any reason why on fresh application a like order for examination would not be made.?

MR CALLINAN: Oh, I think, with respect, I would submit that there would be all sorts of reasons why that already the liquidator had had his opportunity. The passage of time, the current state of the litigation. Well, I would not - - -

HIS HONOUR: Yes, I understand.

MR CALLINAN: - - - try to expose all of the relevant considerations, that there are many relevant considerations that the court would be entitled to look at.

HIS HONOUR: Yes.

MR CALLINAN: Thank you, your Honour.

HIS HONOUR: Yes, thank you. Yes, Mr Whitington.

MR WHITINGTON: Would your Honour permit me to just correct three things my learned friend said with great respect to him? The nature of the procedure in the Bond matter before Debelle J is set out at page 9 to 10 of his reasons and he makes it clear he is dealing with the first instance application. Secondly, my learned friend referred to the - - -

HIS HONOUR: Yes. If you are going to have a rebuttal, it is going to have to be very quick, Mr Whitington.

MR WHITINGTON: Yes. Yes, it will be. My friend referred to page 14 and he meant page 14 of the reasons of the full court and said that was the disclosure before Debelle J.

HIS HONOUR: No, I am not going to have you give a general rebuttal. If there is some particular error that you think my attention needs to be drawn to, do so but then enough.

MR WHITINGTON: Yes. Thank you. Finally, your Honour at page 10 of the reasons of the Bond matter, my learned friend took you there, the answer is to be found at pages 8 and 9. It is the passage on page 10 about purpose. Thank you.

HIS HONOUR: Yes. I would hope to be in a position to give judgment at about five minutes to four.

SHORT ADJOURNMENT

[4.03pm]

HIS HONOUR: On 23 December 1993 Richard Anthony Fontayne England was appointed as liquidator of South Equities Corporation Limited. That company was formally called Bond Corporation Holdings Limited and is the holding company and sole shareholder of Bond Corporation Pty Limited. Dallhold Investments Pty Limited was the holding company of Southern Equities Corporation Limited. At one time Dallhold was controlled by Mr Alan Bond but it is now controlled by his son Mr Craig Bond.

In 1992 Southern Equities Corporations Limited entered a scheme of arrangement with its creditors but it defaulted under that scheme. It was put into liquidation following that default. On 7 December 1995 the liquidator, Mr England, applied to a master of the Supreme Court of South Australia for orders pursuant to section 596B of the Corporations Law that the applicants, Mr Alan Bond and Ms Dolores Jean Caboche and certain others attend before that court for examination.

That application was supported by an affidavit of the liquidator which was sworn, it seems, on 7 December 1995. Consistent with section 596C of the law the affidavit was not available for inspection. On 8 December 1995 the master made orders for examination of Mr Bond and Ms Caboche and orders that at least Ms Caboche produce certain documents to the court. I say, at least Ms Caboche, because the papers do not reveal the terms of the order concerning Mr Bond.

These examinations were, it seems, said to be for the purpose of ascertaining the whereabouts of some art works which it was contended were assets of Southern Equities. These orders were not served on Mr Bond or Ms Caboche. On 2 January 1996 proceedings were issued in the Supreme Court of South Australia on behalf of Southern Equities Corporation Limited and Bond Corporation Pty Limited against Mr Bond, Ms Caboche, and others in relation to the art works that I have mentioned.

It was alleged that a purported sale of these works in 1989 was a sham and various other serious allegations were made against the defendants including in particular Mr Bond and Ms Caboche. On 19 February 1996 the master made a further order in respect of Ms Caboche summoning her to attend for examination on 25 March 1996. No order was then made that she produce any documents. Again this order was not served. No fresh affidavit appears to have been sworn and thus the only affidavit before the master on this occasion was, I assume, the original affidavit filed in the matter and sworn on 7 December 1995. That affidavit did not disclose the fact of the commencement of the proceedings on 2 January 1996 and did not depose to any then settled intention on the part of the liquidator to bring such proceedings.

A still further order for examination of Ms Caboche was made on 18 March 1996. This order provided that the examination take place on 1 April. This order was served and on 1 April 1996 Ms Caboche attended in answer to the summons that had been served upon her.

Although application was then made on her behalf for an adjournment of the examination, that application was refused and the examination proceeded. On 24 April 1997 orders were made in relation to Ms Caboche that her examination be resumed on 16 May this year and thereafter continue on 2 June. It was provided (as is usual in this form of order) that the examination be in private and orders were made that Ms Caboche and two companies named in the order produce certain documents. The order enjoined Ms Caboche and the companies from disclosing the existence of the order to any other person other than their legal advisers and enjoined the legal advisers from disclosing the existence of the order to any other person.

On the same day an order was made in relation to Mr Alan Bond. So far as presently relevant, it provided:

1. That Alan Bond of Karnet Prison farm . . . in the State of Western Australia be examined before the court pursuant to section 596B of the Corporations Law.

2. That the said Alan Bond is hereby summoned to attend before the court at Karnet Prison farm . . . on Thursday, 22 May 1997 at 10.00 am to be examined on oath in respect of the examinable affairs of the above named company.

3. That the examination of Alan Bond be held in private.

This order was said to be made upon reading "the affidavit filed herein".

I assume the affidavit that was referred to was the affidavit that had been filed as long ago as December 1995. In fact the master attended at the Karnet Prison farm in Western Australia on 22 May 1997 to conduct the examination. Various objections were made on behalf of Mr Bond and a number of submissions were made about the powers of the Supreme Court of South Australia to sit in another state, to administer an oath in another state and to require the attendance of Mr Bond in the place in which it was proposed to conduct the examination within the prison. In the end no examination took place.

Various other proceedings were taken in the course of that day, the detail of which I need not notice. On 26 May 1997 the master varied his earlier orders and directed that the examination of Mr Bond take place in Adelaide on 1 July this year. On 27 May 1997 the master made orders under the Service and Execution of Process Act for production of Mr Bond in South Australia.

On 2 June 1997 Ms Caboche applied to set aside the orders that had been made for her examination. The master dismissed that application and the examination proceeded. Ms Caboche applied to a judge for a stay of the master's order but that application was refused. On 4 June 1997 Ms Caboche appealed to a single judge against the dismissal of her application to set aside the order for examination.

[4.11pm]

On 6 June 1997, Mr Bond applied for various orders, including a declaration that the summons issued pursuant to the orders made under section 596B had not been served, and that the orders for examination and service out of the jurisdiction should be set aside or discharged. Ms Caboche's appeal and Mr Bond's application were heard by Debelle J, and on 1 August 1997, he dismissed the appeal and the applications. Each of Ms Caboche and Mr Bond appealed to the Full Court of the Supreme Court of South Australia.

On 23 October 1997, that Court dismissed the appeals and made orders for resumption of the examination of Ms Caboche on 24 November 1997, and appointing 25 November 1997 as the day for commencement of the examination of Mr Bond. On 12 November 1997, Ms Caboche and Mr Bond each filed application for special leave to appeal to this Court. On 19 November 1997, each sought a stay of the operation of the orders of the Full Court, but the application was refused. Each now applies to this Court for a stay of the orders for examination.

The application for stay has, of course, been short served, but there being no opposition, I would abridge the time for service of the application.

The principles to be applied in determining whether to grant a stay are not in doubt. It is:

... an extraordinary jurisdiction which will only be exercised in exceptional circumstances.

Gerrah Imports v Duke Group Limited [1994] HCA 3; 119 ALR 401 at 403, per Dawson J. I am prepared to assume, for the purposes of determining this application, that the subject matter of the litigation, in the sense of the immunity of the applicants from examination and from production of documents will have gone before the application for special leave is heard, if the application for stay is refused. But that, of course, does not determine whether a stay should now be granted. Other factors must be considered, including whether opposite parties will suffer loss if a stay is granted, the balance of convenience, and importantly, the applicant must establish that there is a substantial prospect that special leave would be granted. See Gerrah Imports v Duke Group at 403, per Dawson J; Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited No. 1 [1986] HCA 84; (1986) 161 CLR 681 at 685.

No question arises here of the applicants failing to take steps to seek a stay from the Court in which the matter is now pending. It is necessary, then, to consider the applications for special leave, and it will be necessary, at least in part, to do so separately.

In a draft of the summary of argument, which it is intended should be filed in relation to Ms Caboche's application for special leave, five questions are stated as being the questions in respect of which special leave should be granted. They are:

(1) should not an eligible applicant, including a liquidator, be required to file an affidavit in conformity with sections 596C of the Corporations Law and deposing to all the material facts relevant to the exercise by the Court of its discretion as a pre-condition to the obtaining of an order under s.596B of the Corporations Law?;

(2) in circumstances in which the affidavit fails to disclose a relevant material fact, a settled intention to commence proceedings against the examinee, the knowledge of facts sufficient to plead a detailed, certified statement of claim, the commencement of Court proceedings against the examinee:

(2.1) has the Court jurisdiction to make an order under s.596B of the Corporations Law;

(2.2) should the Court make an order under s.596B?;

(3) can a failure to disclose material relevant facts in an affidavit made by an eligible applicant under s.596C be excused pursuant to s.1322 or otherwise, is such a failure a mere procedural irregularity?;

(4) may an order under s.596B of the Corporations Law be sought and obtained:

(4.1) for mixed purposes, including the purpose of obtaining evidence to assist in the commencement of proceedings against the examinee;

(4.2) for the principal purpose of doing so;

(4.3) for the sole purpose of doing so?;

(5) to what extent should the rights, privileges and opportunities afforded to an applicant for an order under section 596B, including the coercive powers associated therewith, be elevated above the rights, privileges and opportunities afforded to ordinary litigants?

As I understand it, Mr Bond would, for the purposes of his special leave application, seek to agitate the same kinds of matter as are identified in the draft summary of argument of Ms Caboche. His application for special leave, however, confronts a difficulty which does not arise in the application of Ms Caboche and I therefore turn to that application first. Mr Bond's application to set aside the order that had been made for his examination was brought well beyond the time fixed by the Corporations (South Australia) Rules for bringing that application, namely within seven days of service of the order upon him; see Rule 50. The trial Judge refused to extend that time and the Full Court declined to interfere with the exercise of that discretion.

I am not persuaded that the argument that the decision of the Full Court in this respect was wrong or is attended by doubt is an argument likely to attract a grant of special leave to appeal in Mr Bond's case. Unless Mr Bond could demonstrate error in this respect, the other points which he seeks to agitate in the course of his application for special leave do not arise, and any grant of leave in his case would be futile.

So far as Ms Caboche's application for special leave is concerned, although the grounds that I have referred to put forward five questions, there are in the end two principal areas for debate. Much emphasis was placed in the course of the applicant's argument on the contention that the proceedings raised the question whether section 596C, either standing alone or in conjunction with section 596B, requires an eligible applicant to file an affidavit disclosing all material facts bearing upon the exercise of the powers conferred by section 596B.

It was contended that a failure to disclose in an affidavit filed in purported compliance with section 596C all material facts means that there has been no compliance and that the jurisdiction conferred by section 596B is not enlivened and that the failure is one that may not be excused under section 1322 or otherwise.

It is important then, in my view, to identify the exercise of the power under section 596B which is challenged. The proceedings before Debelle J were an appeal from the decision of the Master in the case of Ms Caboche and an application to his Honour to set aside the Master's orders for examination in the case of Mr Bond. In Ms Caboche's case the Judge ordered that her appeal be dismissed and that the order of 24 April 1996 be affirmed. In the case of Mr Bond, the Judge ordered that Mr Bond's application to set aside the Master's orders should stand dismissed.

It is not disputed that Debelle J had before him affidavits which disclosed the fact that the action instituted by the liquidator had been commenced and affidavits which revealed the detailed nature of the allegations which by then had been made in the amended statement of claim that had been filed on behalf of the liquidator. The appeal to the Judge was, I am told, an appeal by way of re-hearing de novo. In any event, the point which fell for determination by his Honour in the case both of Ms Caboche and Mr Bond was whether an order for examination should be made as it had.

It follows, in my view, that the Judge was called on to consider afresh the exercise of the power under section 596B which now it is sought to challenge. If that is so (and in the end I need express no concluded view on it) what is asserted to be the deficiency in the material before the Master is irrelevant. It is enough for present purposes if I say that the contentions which I have outlined in this regard are at the least strongly arguable.

I should also perhaps say that the premise underlying the applicant's contentions, namely that any failure of disclosure to the Court in the affidavits in support of an application under section 596B is irremediable and all subsequent proceedings are necessarily and fatally flawed, is a proposition of great width which is not based, in my view, on any immediately apparent aspect of the words of either section 596B or section 596C. But I need say no more than that. I expressly refrain from expressing any view about the conclusions which the Full Court reached on this aspect of the matter.

The second principal area for consideration that was raised, was the contention that the examinations in this matter are to be conducted for improper purposes. It is in my view not easy to identify any definite finding below about the purposes which the liquidator has in carrying out the examinations proposed. I am, however, prepared to assume for present purposes that it is at least arguable that the liquidator's purpose is a purpose of assessing the prospects of success in the claim which he has instituted in the name of the companies I have mentioned and to obtain evidence for presentation in Court in support of those claims.

[4.25pm]

In light of what is said in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, in particular at 496 to 498 per Mason CJ, I am not persuaded that this point, or the other points which it is now sought to agitate, are points which have sufficient prospects of attracting a grant of special leave as now to warrant the grant of any stay of proceedings.

I do not embark upon any examination of whether there is any significant difference that can be identified from the use by particular Justices of slightly different terminology to describe what are sufficient prospects of success of an application for special leave to warrant the grant of a stay. I do not consider that task fruitful. It is enough if I say that taking those expressions at the best, from the point of view of the applicant, I am not persuaded that the discretion which falls to be exercised is one which should be exercised in favour of the grant of a stay. Accordingly, the applications will be dismissed. Yes, Mr Whitington.

MR WHITINGTON: I ask that the respondent have his costs of each application, if the Court pleases.

HIS HONOUR: Yes, can you resist that, Mr Callinan?

MR CALLINAN: I cannot think of anything to say, your Honour.

HIS HONOUR: Yes. In each case the order will be application dismissed with costs. I will certify for counsel. There being no other business I will adjourn.

AT 4.29 PM THE MATTER WAS ADJOURNED

INDEFINITELY