Case: Lonrho Limited v Shell Petroleum (1980) 1 WLR 627
Outcome: applied
terms 'possession, custody or power' in O 15 represent three alternative states. As summarised in one learned text: 'The term "possession" means the physical or corporeal holding of the document pursuant to a legal right to its possession... (for example, agents and bailees); "custody" means the mere actual physical or corporeal holding of a document, regardless of its right to possession, (for example, servants and employees)...; and "power" means an enforceable right to inspect the document or to obtain possession or control of it from the person who ordinarily has it in fact.' (SD Simpson, DL Bailey and EK, Evans Discovery and Interrogatories 2 nd edn, Butterworths, Australia, 1990 at 43, see also Halsbury's Laws of England 4 th edn vol 12 Discovery par 39. With respect to 'possession' and 'custody' see also Santow J in Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR [97557] at 14,371-14,372; Stephen J in Federal Commissioner of Taxation v ANZ Banking Group Ltd [1977] HCA 57 ; (1979) 143 CLR 499 at 504-505; and S Fisher Commercial and Personal Property Law, Butterworths, Australia, 1997 ch 3; and with respect to the meaning of 'power' see also Beaumont J in Australian Independent Newspapers Ltd v John Fairfax Holdings Ltd (Federal Court of Australia, 22 June 1994) par 12 and Lord Diplock in Lonrho Limited v Shell Petroleum (1980) 1 WLR 627 at 635-6.) Although from the submissions of the parties it appears that the applicants may have an enforceable legal right to obtain the documents from the respondents, the applicants do not, in the words of Lord Diplock in Lonrho Limited v Shell Petroleum (1980) 1 WLR 627 at 635-636, have 'power' over the documents. They do not have the enforceable legal right to obtain the documents from the respondents without the need to obtain the consent of anyone else . The submissions of both parties indicate that the applicants would need to obtain the consent of the respondents to access the computer and therefore obtain the documents. Even if the respondents are likely to comply voluntarily with a request of the applicants to access their property, and in turn the computer and the documents, it does not mean that the documents are currently 'in the power of' the applicants (cf comments of Lord Diplock in Lonrho at 636H). As the respondents have offered to allow the applicants access to the computer containing the records, in my view it is appropriate in relation to these documents that, once the respondents allow the applicants access to the computer and its contents, the applicants discover the records sought by the respondents. Accordingly, at this stage, I make no order for discovery of these documents by the respondents. Emails (par 41 Strahley affidavit) The respondents have stated that they have already discovered these documents. There is no question that the administrator is the agent of the company to which he or she is appointed: s 437B. However, as made clear by s 437A(1) , administrators have very extensive powers over all aspects of the company's business, property and affairs. Indeed as the High Court noted in Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 172 ALR 28 at 30, Div 3 of Pt 5.3A Corporations Act 2001 (Cth) provides that the administrator of a company under administration is to assume control of the company's affairs. On the basis that the administrator had possession of the documents, the relationship of administrator and company as contemplated by Pt 5.3A Corporations Act does not permit the company other than with the consent of the administrator to have 'power' over documents retained by the administrator: s 438C (cf Lord Diplock's comments in Lonrho at 636H discussed earlier in this judgment).