Case: Re BPTC Ltd (in liq) (1993) 10 ACSR 756
Outcome: applied
The principles which relate to the production of documents for examination of an examinee under the provisions of the Corporations Act were dealt with by Bryson J in Re BPTC Ltd (in liq) (1993) 10 ACSR 756. His Honour referred to earlier authority which recognised the need for a relation between the order for production of documents and the purposes of examining persons under the then s 597. His Honour also observed at page 763 that "[an] order for production of documents which had the effect of compelling a production of documents which were not required for the examination would [...] be oppressive". 12 At page 766, his Honour remarked that it would not be appropriate in the case of a mandatory order directed to a person to perform stated acts that the validity of the order should be saved by some process of severance. He pointed out that it is unlikely the judicial officer who made the order would have intended that some severable part of the order would be valid if other parts of it were not valid. Thus, the contemplation must be that the whole of the order would stand in view of the consequences of failure to comply with such an order. 13 It does seem to me that in light of the observations of Bryson J in Re BPTC there is some force in Mr Thawley's submission that the category of documents sought by [4] was so broad that it could not have been necessary for the proper conduct of the proposed examination of the affairs of Allstate. 14 Mr Thawley conceded that [4] included documents relevant to the examinable affairs of Allstate but he submitted that its terms were not confined to relevant documents. I do not accept that the terms of the order were so broad that they extended beyond the examinable affairs of Allstate. Mr Thawley's concession must clearly be correct, particularly in light of the fact that Mr Thawley has not had access to the confidential affidavit which gave rise to the orders of the Registrar made on 1 September 2006. 15 Mr Lee, for the applicants, submitted that it is plain from the exchange of correspondence and the concession made on 15 September to which I have referred, that the applicants were prepared to limit the scope of production in a sensible manner. Whilst I think that is correct, nonetheless, it seems to me that in the absence of any actual agreement between the parties to limit the scope of [4] by the deadline of 22 September, Mr Trevor and BankWest had to file their applications on that day. 18 In my view, it is plain that Mr Trevor and BankWest needed to obtain an order in terms of [1] of their interlocutory applications. This is because, without access to the confidential affidavit, it would have been difficult, if not impossible, for them to properly address the Court on the question of whether the production order infringed the principles referred to by Bryson J in Re BPTC . 19 Thus, whether or not an order for access to the confidential affidavit was the primary relief that was sought, it was an essential part of each of the applications and without determining that issue, I cannot determine what the result would have been. It may well be that the result would have been adverse to Mr Thawley's clients.