Nobody Expects The Inquisition: High Court Of Australia Opens The Door To Extraordinary Public Examination Powers To Potential Class Action Plaintiffs And Beyond.

In its recent decision in Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) [2022] HCA 3 (Walton), the High Court of Australia held, in a split decision, that the mandatory public examination power contained in section 596A of the Corporations Act 2001 (Cth) (the Act) could be used by eligible applicants to examine directors and other officers of a company in external administration, including senior management, external administrators and trustees, about the company’s affairs for the broad purposes of enforcing and promoting compliance with the Act and investigating potential claims of corporate misconduct.

In doing so, the High Court departed from a long line of authority that had held that the public examination powers are extraordinary in nature and that their use should be limited to furthering the interests of a company in external administration or its creditors and contributories as a whole, or bringing criminal or regulatory proceedings against the company.

Public examinations are a powerful inquisitorial tool and the extension of their availability provides new opportunities to shareholders and others with claims involving the affairs of companies in external administration (and by extension, class action promoters and litigation funders). Conversely, the decision brings increased risks to directors and other officers, insolvency practitioners, insurers, auditors and other advisors to distressed companies.

It also remains to be seen how the Australian Securities and Investments Commission (ASIC) and the courts will manage applications by third parties in circumstances where this may prejudice current or future examinations by external administrators and the external administration generally.

As with most doctrinal shifts, it will take some time for examinations relying on Walton to work their way through the system. However, the decision may have pushed the pendulum too far in terms of the burden on ASIC and court resources, and the extraordinary empowerment of eligible applicants to abrogate the typical legislative protections of examinees for private purposes, with only a modest connection to the public interest. If so, legislative reform may be necessary to clarify the position.

Public examinations

The public examination powers contained in sections 596A and 596B of the Act provide an avenue for ‘eligible applicants’ to summon directors, other officers, provisional liquidators and other persons who may hold relevant information about a company in external administration to court and examine them about the ‘examinable affairs’ of the company.

An ‘eligible applicant’ means:

• ASIC;
• an external administrator including an administrator, deed administrator, liquidator or a small business restructuring practitioner appointed under Part 5.3B of the Act; or
• a person authorised in writing by ASIC.

The definition of an officer extends beyond a director and covers:

• a director or secretary of the company;
• a person who makes decisions that affect the whole, or a substantial part, of the business of the corporation or who has the capacity to affect significantly the company’s financial standing or in accordance with whose instructions or wishes the directors of the corporation are accustomed to act;
• an external administrator of the company including a receiver, administrator, deed administrator, liquidator or a small business restructuring practitioner appointed under Part 5.3B of the Act; or
• a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

The ‘examinable affairs’ of a company are defined broadly and include:

• the promotion, formation, management, administration, restructuring or winding up of the company;
• any other affairs of the company (including the membership, control, business, trading, transactions and dealings, property, liabilities, profits and other income, receipts, losses, outgoings and expenditure of the company); and
• the affairs of a related or connected entity to the company insofar as they are relevant to the company or its examinable affairs.

Both the majority and minority in Walton confirmed that it remains the case that the company whose examinable affairs are to be examined must be subject to some form of external administration.^[1] The majority held that this was supported by the context of section 596A being contained in Chapter 5 of the Act (a chapter that addresses the various ways that a company may be externally administered) and the legislative history of the provisions which, “lie deep in corporate insolvency law nourished by the development of the examination powers in respect of bankrupt individuals.”^[2]

Section 596A provides for the examination of existing directors and other officers or provisional liquidators of companies in external administration, or those who were officers or provisional liquidators during or following the two years prior to the company entering external administration. Where an examination summons is validly applied for under section 596A (and is not an abuse of process) the court must summon the person for examination.

Section 596B provides for the examination of other persons who may be able to give information about the examinable affairs of the company and persons who may have been guilty of misconduct in relation to the company. An application under section 596B must be accompanied by a supporting affidavit and the court has a discretion as to whether to summon the person for examination.

A summons under either sections 596A or 596B may also require the person summonsed to produce documents at the examination that are in the person’s possession and relate to the company or its examinable affairs. This is an important component of the public examination powers.

The courts have also made clear that it would be entirely proper for an eligible applicant to apply for and obtain an examination summons under section 596A for the purpose of obtaining information concerning legitimate issues or legitimate questions relating to the management of the company, including by an external administrator while the company is subject to external administration.^[3]

Public examinations vs discovery

The public examination powers under sections 596A and 596B, and their predecessors, have been described by the courts as extraordinary and special powers of an investigative and inquisitorial kind intended for wide, public purposes, and a form of discovery not available to the ordinary litigant.^[4] In relation to a predecessor examination provision, the High Court noted that it represented a prevailing of the higher public interest in requiring full disclosure by a person over personal freedoms.^[5]

Public examinations differ from the standard civil litigation discovery processes in several key ways:

• The examination process is typically faster and more cost-effective than formal discovery.
• The examination process can occur before the commencement of proceedings and, unlike preliminary discovery, without any need to demonstrate to the court a potential entitlement to a claim for relief.^[6]
• The examination is held in open court unless special circumstances (as determined by the court) apply in which case the court can order that the examination be run privately. The court can also make orders excluding specific individuals from public examinations or permitting the attendance of specific individuals at private examinations.
• Sections 596A and 596B permit a judicially supervised intrusion upon the examinee’s rights to preserve the confidentiality of books and records in their control and their right to silence.^[7]
• An examinee is not excused from answering a question put to them at an examination on the ground that the answer might incriminate them or make them liable for a penalty. However, where privilege is claimed in advance by the examinee,^[8] the answer cannot be used in evidence against the examinee in criminal or penalty proceedings.
• A public examination is not considered examination-in-chief or cross-examination and the rules of evidence do not necessarily apply.^[9]
• The court has extensive powers to give directions as to the conduct and procedure of the examination, including the prohibition of the publication or communication of information about the examination or that a document created at the examination be destroyed.

Decision in Walton

Background

The appellants in Walton were two long-term shareholders of Arrium Limited. Arrium was a major producer of iron ore and steel and was listed on the Australian Stock Exchange. It undertook a A$754 million capital raising in October 2014. By early 2015, following a steep decline in the export price of iron ore, Arrium announced major reductions in the value of its mining operations in its 2015 half-yearly results and announced the closure of one of its major mining operations. Broadly, the two shareholders, represented by a class action plaintiff law firm and supported by a litigation funder, contend that there was insufficient disclosure of these poor conditions in Arrium’s 2014 half-yearly accounts and the information provided to potential participants ahead of the capital raise. Arrium was placed into administration in April 2016 and entered liquidation in June 2019.

The two shareholders requested and obtained ‘eligible applicant’ status from ASIC under section 596A of the Act in April 2018. In May 2019, the shareholders applied to the Supreme Court of New South Wales for orders that a former director of Arrium appear for public examination and produce documents. Orders were also sought for the production of documents by Arrium’s auditor and the bank who advised on the capital raising. The Registrar in Equity granted each of these orders. Arrium applied to the Supreme Court of New South Wales to have the orders stayed or set aside.

First instance

At first instance, Black J of the Supreme Court of New South Wales refused to set aside the examination summons. Justice Black held that the applicants had failed to discharge the heavy onus of establishing that the examination would be an abuse of process on the basis that:

• the shareholders were eligible applicants having been designated as such by ASIC;
• the matters upon which they wished to examine the director were matters upon which the liquidators could have properly examined the director; and
• the information would likely advance the interests of Arrium and its creditors by either producing additional relevant information in support of further causes of action by Arrium or by supporting the liquidators’ existing assessment that the claims were not worth pursuing.

Justice Black found that the fact that the shareholders were seeking to use the information obtained through the examinations to advance their prospective private claims as shareholders did not invalidate the proper purpose of first obtaining information about Arrium’s examinable affairs.

Appeal

Arrium appealed the decision to the New South Wales Court of Appeal. In a unanimous judgment, Bathurst CJ, Bell P and Leeming JA upheld the appeal. The Court referred to decisions of the Federal Court (including the Full Court of the Federal Court)^[10] which established the principle that public examinations conducted for a predominant purpose of achieving a private benefit for the applicant (for example, in other litigation) and not to benefit the corporation, its creditors or its contributories, were an abuse of process.

The Court of Appeal held that the examination was sought by the shareholders for the predominant purpose of pursuing private claims for a limited group of shareholders and not for the benefit of the company, its creditors or contributories; and therefore issuance of the summons under section 596A for examination was an abuse of the public examination process.

High Court

The shareholders appealed the decision to the High Court. The High Court allowed the appeal in a split (3:2) decision, finding that the issue of the examination summons to the former director of Arrium was for a legitimate purpose and not an abuse of process.

In their joint judgment, Edelman and Steward JJ opined that the meaning of section 596A should not be constrained by “muffled echoes of old arguments”^[11] concerning its predecessor provisions and that to avoid being an abuse of process, an examination did not need to be for the benefit of the company or any or all of its creditors or contributories. The majority held that the key question to ask in assessing the existence of an abuse of process was whether the applicant’s primary purpose would contradict or stultify the scope and purpose of the statute.

Edelman and Steward JJ also held that the enforcement of, and promotion of compliance with, the Act and the protection of shareholders or creditors from corporate misconduct were legitimate purposes under section 596A. Their Honours further held that regardless of whatever ultimate purpose an applicant might have, including to explore private rights, a summons that is sought for a “substantial purpose” including the public purpose of enforcement of the Act would not constitute an abuse of process.

In a separate majority judgment, Gageler J referred to the High Court’s “duty to rechart a course of decision-making incorrectly set by another intermediate appellate court”.^[12] Justice Gageler rejected the notion that the examination power could be used only to assist the insolvent company and its creditors or to bring criminal or regulatory proceedings against the company. His Honour referred to the fact ASIC had broad powers under the Act to authorise any person as an ‘eligible applicant’ and that not every aspect of an external administration necessarily operates for the benefit of the corporation or its creditors and contributories.

In their dissenting judgment, Kiefel CJ and Keane J agreed with the judgment of the New South Wales Court of Appeal. Their Honours referred to the need to “adhere to the settled understanding”^[13] of the purposes of section 596A and its predecessors, and held that section 596A does not authorise an examination to facilitate the investigation of a claim that has nothing to do with the external administration of the company and is being pursued exclusively for the benefit of persons other than the company, its creditors or its contributories considered as a whole.

Kiefel CJ and Keane J, preferred the interpretation that use of the examination power must be for the benefit of the corporation itself rather than the applicants seeking the summons. Kiefel CJ and Keane J observed that:^[14]

One result of the broader purpose for which the appellants contend would be that the special power of examination would be available in all manner of proceedings, wholly unconnected with the external administration of a company or the interests of persons in its outcome. By way of example, there would seem to be nothing to prevent a person seeking an examination in aid of an industrial dispute or an action for personal injuries arising in the workplace. If such a significant change had been introduced it might have been expected that some mention might have been made of it in the Harmer Report or the Explanatory Memorandum to the [Corporate Law Reform Act 1992 (Cth)].

We’re not in Kansas anymore

Much of the focus of the dissenting judgment in Walton was on the historical context and purpose of section 596A and its predecessor provisions. Kiefel CJ and Keane J conducted an extensive survey of the history of examination powers from the first provision appearing in the company law of the UK in 1844 through to the modern day variants inserted into the Corporations Law 1989 (Cth) in 1992.

Their Honours observed that the original provision had been introduced to give the court power, analogous to the power that had been available in a bankruptcy context since 1542, to summon and examine persons who were thought to be able to give information about the property and past transactions of the insolvent company and assist the liquidator in the location of assets.

While their Honours accepted that the examination powers had been extended beyond a liquidation to include other forms of external administration, and that the class of persons who could apply for them had been broadened, they did not accept that the statutory purpose of the examination provisions had changed. Indeed, they were of the view that the statutory purpose had more or less been left unchanged over the years and that the predecessor provisions to sections 596A and 596B had always been directed to persons who had been concerned in, or might be able to provide information about, the affairs of the company, or persons who might have been involved in misconduct with respect to the company.

In support of this finding, Kiefel CJ and Keane J noted that sections 596A and 596B had their genesis in the Australian Law Reform Commission’s 1988 Harmer Report, which provided that the chief purposes of an examination in company insolvency were to facilitate the recovery of property, to discover whether conduct of the insolvent led to the insolvency and to investigate possible causes of action against third parties. The primary purpose, it was said, was the discovery of information which would assist in the administration of the estate, while a secondary purpose was the interests of public policy in prosecuting criminal offences.

The potential uses of the public examination power now blessed by the High Court go far further than those in comparable common law jurisdictions. In the UK and Hong Kong, only external administrators may seek public examination orders, although creditors and contributories in Hong Kong have a right of participation.^[15] In Singapore, creditors may apply for examination summonses with leave of the court but existing case law indicates that the examinations under the predecessor examination provision must be for the benefit of the external administration, the company or the ultimate return to creditors.^[16]

Not quite a free-for-all

While the High Court’s decision in Walton has attracted significant attention for the expansionary interpretation of the public examination power it is important to keep in mind the limits on accessing the public examination powers under sections 596A and 596B. Barriers to access remain in place, including:

• The company whose examinable affairs are to be examined must be subject to some form of external administration.^[17]
• Examinations to investigate potential claims, including class action claims, against insolvent companies will require sufficient funding and will require sufficient insurance cover or priority status. It is unlikely that a creditor would be permitted to conduct an examination in relation to a claim in respect of which leave to proceed under sections 440D (in the context of an administration) or 471B (in the context of a liquidation) would not be granted by the court such as ordinary unsecured claims will are the subject of the proof of debt regime.
• The application must be made by an ‘eligible applicant’, that is, an external administrator, ASIC or a person designated by ASIC as an eligible applicant.
• ASIC will perform the role of gatekeeper. The majority in Walton emphasised that ASIC is unlikely to authorise individuals to make illegitimate, vexatious or oppressive examinations of company officers.^[18] There is also no positive obligation under the Act for ASIC to authorise eligible applicants even where the application is made for a legitimate purpose. ASIC is yet to release any guidance on the making of these decisions.
• The person to be examined must be an existing officer or provisional liquidator of the company, or have been an officer or provisional liquidator during or after the two years prior to the company entering external administration.
• The summons must be for examination about the ‘examinable affairs’ of a company in external administration, however the scope of ‘examinable affairs’ is broadly defined.
• The cost of carrying out examinations would likely defer frivolous applications and section 597B permits a court to order an applicant pay the costs of an examinee where it is satisfied that the relevant summons has been “obtained without reasonable cause”.^[19]
• The court retains a capacity at all times to prevent an examination which is oppressive, vexatious, or otherwise an abuse of process.^[20]
• Where the examination power is not being used for a predominant purpose that benefits the external administration, the company or its creditors, and instead is being used for a predominately private purpose, the court will likely still require that the examinations also be conducted for a public purpose (for example, enforcing legislation or investigating potential claims of corporate misconduct). An applicant may be unlikely, for example, to obtain a summons to investigate the examinable affairs of a company in external administration to pursue a contractual claim against a third party that does not involve corporate misconduct by the company in external administration or its officers.

It also remains the case that a public examination must be for a legitimate purpose and not be oppressive or an abuse of process. The abuse of process categories are not closed.^[21] For example, a public examination cannot be used to:

• conduct a dress rehearsal for cross-examination in upcoming legal proceedings;^[22]
• examine witnesses to damage their credibility ahead of upcoming separate legal proceedings;^[23]
• interfere with the administration of justice in another proceeding;^[24] and
• for the sole purpose of obtaining a forensic advantage not available from ordinary preliminary pre-proceeding procedures (for example, preliminary discovery)^[25] or granting an unfair forensic advantage to the examiner over the examinee in existing litigation^[26].

ASIC as the gatekeeper

ASIC has published scant information indicating how it determines eligible applicant applications. In December 2018,^[27] ASIC advised that applicants must pay a fee of $468 to make an application and provide information confirming:

• the relationship with the company and that there is no conflict of interest;
• the reasons for the proposed public examination;
• why it is for the benefit of the corporation, its creditors or contributories and is not an abuse of process;
• why the matters proposed to be examined fall within the examinable affairs of the company; and
• where relevant, details of any current or anticipated court proceedings against any officers or related entities of the company.

In its latest Regulation of Registered Liquidators Report published in April 2020,^[28] ASIC indicated that it had received 16 ‘eligible applicant’ requests in FY2018-19 (down from 23 in FY2017-18) from receivers and managers and from other parties. ASIC indicated that in the same period it had approved 12 eligible applicant requests, two had been withdrawn, one did not require a decision as it had been provided by a liquidator and one couldn’t be considered because the relevant company wasn’t in external administration. In effect, all qualifying ‘eligible applicant’ requests were approved.

During the financial year ended 30 June 2021, ASIC considered 17 applications for authorisation as an eligible applicant.^[29]

In favour of granting authorisation, ASIC noted that it helps the external administrators recover assets and report fully to ASIC which can then determine whether it needs to conduct its own investigations and take enforcement action.

ASIC has endorsed private enforcement of corporations laws having advised government that ‘class actions play an important role and complementary role in improving access to justice and fostering accountability’. Further, despite having the power to commence its own class actions, ASIC has not done so for many years.

ASIC has also historically considered whether the sought after examinations will help the external administration and be for the benefit of the corporation, its creditors or contributories as highly relevant factors in determining an application.^[30] It will be interesting to see whether, and if so how, ASIC modifies its approach in light of the broader approach taken by the High Court in Walton.

There are also important procedural fairness issues at play. The Full Court of the Federal Court has held that principles of natural justice do not apply to a decision by ASIC to authorise a person to be an eligible applicant, rather it is merely an antecedent step to the commencement of the exercise of the power to obtain an examination order and it is the court issue of the summons that directly affects the rights of a potential examinee.^[31] Several consequences flow from this:

• a potential examinee is not entitled to notice from ASIC of its intention to authorise a person to apply to the court for a summons for examination;^[32]
• a potential examinee is not entitled to be heard in relation to the decision of ASIC on whether the eligible applicant status is appropriate;^[33]
• it is unclear what additional information ASIC will have before it at the time of making a decision beyond the applicant’s application, if any; and
• ASIC is not entitled to give reasons for its decision;^[34]
• there is unlikely to be a right of judicial review of an ‘eligible applicant’ decision by ASIC.

Given the extent of the burdens imposed by the examination process, published guidance or policy documentation outlining how ASIC intends to exercise the discretion to authorise persons to seek compulsory examinations would at least increase the transparency of those processes, and potentially provide procedural safeguards as to how authorisations will be granted.

Unexpected consequences?

Another relevant consideration is how much of a strain additional eligible applicant requests and examinations will put on resources of ASIC and the courts.

It also remains to be seen how ASIC and the courts will manage the very real prospect of applications by third parties that may prejudice or otherwise interfere with examinations being conducted by external administrators, or that may be conducted in the future, and the external administration generally. In Walton, for example, the liquidators of Arrium (acting at first instance in their capacity as deed administrators on behalf of Arrium) unsuccessfully opposed the issue of the examination summons on the bases that:

• they considered it unlikely that the September 2014 capital raising by Arrium would give rise to any cause of action which would potentially benefit the Arrium Group or its creditors, and therefore did not make it a key subject of their earlier public examinations;
• they had conducted informal interviews of the relevant director of Arrium and decided not to formally examine him;
• the appellants had foreshadowed a possibility of participating in the earlier public examination process but had not done so;
• the proposed shareholder class action would be of no benefit to Arrium Group or its shareholders;
• they did not consider that there would be any benefit from further investigation into the circumstances of the September 2014 capital raising because there was nothing to indicate that Arrium or its creditors had suffered loss as a result of those matters; and
• the joinder of Arrium in a class action would be detrimental to Arrium and its creditors.

In Walton, the liquidators (then acting in capacity as administrators of Arrium) had completed their public examination process when the application by the shareholders to ASIC was made so there was no issue raised as to the impact of the proposed examinations on any examination process being conducted by or proposed to be conducted by the liquidators in the future. Such issues may arise where, for example, a third party seeks to issue examination summonses during the administration of a company in circumstances where public examinations are usually conducted by external administrators only after the company has transitioned to liquidation.

Concurrent examinations, on the other hand, are less likely, as third parties are more likely to let the external administrators undertake the examination and then seek copies of the transcript and document bundles from that examination relying on section 597(14A) of the Act.^[35] A third party will be faced with the problem that they cannot obtain documents from the company for the purposes of an examination pursuant to sections 596A or 596B, and can obtain documents only from the officers or third party examinees.

Implications for directors and other officers

Increased class action risk

Walton increases class action risk for directors, officers and third parties in the event a company is placed into external administration. The expansion of the examination powers for the benefit of shareholders (or former shareholders) to assess the prospects of potential claims against the company and its current or former directors and officers will likely be utilised by class action claimants and promoters to close the information asymmetry gap prior to commencing class action proceedings. Compared to the usual processes available under the court rules,^[36] examinations under sections 596A and 596B would be an easier route that achieves the same end (and possibly a greater end, given the breadth of ‘examinable affairs’ and the potential to utilise the information gathered as evidence in any subsequent class action). Historically, class action promoters have focused on claims against solvent companies, rather than insolvent companies. Walton may lead to an increase in shareholder class action claims made against insolvent companies, including for information about insolvent company insurance policies and the policies themselves.

It is significant that the class action risk is not limited to shareholder class actions either. The power’s purpose was described by the majority judgments in broad, permissive terms as: “to address, by examinations… the administration or enforcement of the law concerning the corporation and its officers in public dealings”.^[37] Although the Walton plaintiff was seeking to assess the merits of what can be described as ‘classic’ shareholder class action claims, the categories of examinable affairs are not closed and could conceivably be used as a means of assessing and vindicating interests in “all manner of proceedings”, such as in aid of industrial or product liability or employment class action claims.^[38]

Further emphasis on good governance

Australian companies and boards are arguably well-accustomed to managing and navigating the complex regulatory environments in which they operate. Listed entities, for example, appreciate that shareholder class actions have been a well-established feature of the legal landscape in Australia and understand the importance of having sound governance policies and processes in place to mitigate and manage shareholder class action risks. Walton serves to highlight and emphasise the importance of good governance and the need for the boards to actively discharge their duties, given that directors and officers may face examinations by ‘eligible applicants’.

Review D&O policies

Directors and officers should review their directors and officers insurance policies to consider whether they are adequately indemnified and insured for costs relating to responding to a mandatory public examination.

Given that public examinations may be initiated against an officer or director in the period after they have already vacated their position in the company, directors and officers should confirm whether their insurance policies provide sufficient protection during this period. Directors and officers should also consider the scope of any insolvency exclusion and change of control provisions which are often triggered by the appointment of an external administrator.

Deeds of indemnity and access to company documents

Directors and officers should also have a clear understanding of their rights to access company books and records in the context of public examination proceedings (although whether they take steps to do so will involve strategic considerations given that such documents can then be the subject of production orders).

Directors and officers generally have deeds of indemnity from the company, or another member of the relevant group, which provide coverage for legal costs and access to company books and records. However, such deeds are generally not enforceable if the company or group member providing the deed of indemnity is in external administration. A breach of the deed of indemnity will only give rise to an unsecured claim in the external administration.

However, the external administration of a company does not affect the rights of directors to make an application for access to documents from the company under sections 198F, 290 and 1303 of the Act (subject to the court granting leave to proceed where required).^[39]

Engage with class action specialists early

Class actions raise issues requiring specialist expertise. Given the direct relationship between a public examination by a potential class action claimant and the prospective class action litigation, it is important to engage a class actions specialist to assist in preparing for the public examination.

The experience of class action practitioners will be valuable in pre-empting likely claims and may be important to, where possible, avoid conferring what Beach J described as a ‘tactical advantage’ and ‘asymmetry’ on a future applicant through disclosure of any relevant insurance details.^[40]

It also remains to be seen whether the High Court’s decision in Walton will facilitate class action claimants issuing summonses or notices to produce to officers who are not prospective defendants (for example, external administrators) pursuant to section 596A or third parties who are not prospective defendants with leave of the court pursuant to section 596B.

For class actions practitioners, Walton is another salient example of class action promoters looking to expand their tools for addressing information asymmetry prior to the commencement of proceedings. In contrast to other forms of largely discretionary relief under court and other rules, such as preliminary discovery, section 596A and 596B examinations offer a much more direct route if available to a plaintiff.

Comment

It will take some time for examinations relying on Walton to work their way through the system. However, it is difficult to see how the decision would not lead to an added burden on ASIC and court resources and the extraordinary empowerment of eligible applicants to abrogate the typical legislative protections of examinees for private purposes, with only a modest connection to the public interest. Whether this doctrinal shift is sustainable is yet to be seen. If not, legislative reform may be necessary to clarify, or limit, the availability of the public examination powers.

The decision will likely be welcomed by shareholders and other potential class action participants, litigation funders and others with claims involving the affairs of companies in external administration. The public may also welcome the added accountability of insolvent companies and the way in which they are, and have been, managed.

Conversely, directors and other officers, insolvency practitioners, insurers, auditors and other advisors to distressed companies should familiarise themselves with the decision and consider their insurance cover and risk minimisation strategies.

This article was first published in LexisNexis’ Australian Insolvency Law Bulletin Vol 21 No 9 & 10 (April 2022).

For further information, please contact:

Christine Tran, Partner, Herbert Smith Freehills

christine.tran@hsf.com

[1] Walton at [29], [77] (Kiefel CJ and Keane J); [106], [125] (Gageler J); [158] (Edelman and Steward JJ).

[2] Walton at [158] (Edelman and Steward JJ), citing Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (2007) 156 FCR 501 at 527 [88] (French J).

[3] Kimberley Diamonds Ltd v Arnautovic [2017] FCAFC 91 (Foster, Wigney and Markovic JJ).

[4] Walton at [60] and [78] (Kiefel CJ and Keane J), citing Hamilton v Oades (1989) 166 CLR 486 at 497.

[5] Walton at [51] (Kiefel CJ and Keane J), citing Rees v Kratzmann (1965) 114 CLR 63 at 80.

[6] See, eg, Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1). However, ASIC may require this in designating eligible applicant status.

[7] Palmer v Ayres [2017] HCA 5 at [40] (Kiefel, Keane, Nettle and Gordon JJ).

[8] Typically, by the examinee saying the word ‘privilege’ before every answer.

[9] In re Greys Brewery Company (1883) 25 Ch.D 400 at 404.

[10] See Re Excel Finance Corporations (rec & mgr apptd); Worthley v England (1994) 52 FCR 69 and Re New Tel Ltd (in liq); Evans v Wainter Pty Ltd (2005) 145 FCR 176.

[11] Walton at [169] (Edelman and Steward JJ), citing Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 414 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ, quoting Ex parte Professional Engineers’ Association (1959) 107 CLR 208 at 276 per Windeyer J.

[12] Walton at [124] (Gageler J).

[13] Walton at [87] (Kiefel CJ and Keane J).

[14] Walton at [86] (Kiefel CJ and Keane J).

[15] Insolvency Act 1986 (UK), section 236; Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (Hong Kong), section 286A.

[16] PricewaterhouseCoopers LLP & Ors v Celestial Nutrifoods Ltd (in compulsory liquidation) [2015] SGGA 20; Sinfeng Marine Services Pte Ltd v Taylor & Anor [2020] SGCA 96.

[17] Walton at [29], [77] (Kiefel CJ and Keane J); [106], [125] (Gageler J); [158] (Edelman and Steward JJ).

[18] Walton at [170] (Edelman and Steward JJ).

[19] Walton at [192] (Edelman and Steward JJ).

[20] Walton at [192] (Edelman and Steward JJ).

[21] See, eg, Walton at [125] where Gageler J states that he “does not think it necessary or prudent to attempt to map out the metes and bounds of legitimate purposes to which the process might ultimately be put in order to resolve the present appeal”.

[22] Sent v Andrews [2002] VSCA 209.

[23] Re Hugh J Roberts Pty Limited (in liquidation) and The Companies Act [1970] 2 NSWLR 582 at 585.

[24] Spedley Securities Limited (in liquidation) v Bank of New Zealand (1990) 9 ACLC 124. It will be interesting to see how this principle will be applied by the courts should third parties (for example, shareholders) apply for examinations already being examined by external administrators or to be examined, or vice versa.

[25] New Zealand Steel (Aust) Pty Limited v Burton (1994) 13 ACSR 610 at 617; Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 519 (Gleeson CJ). However, note the discussion of New Zealand Steel in Walton.

[26] Walton at [117] (Gageler J).

[27] ASIC, Corporate Insolvency Update – Issue 10, <https://asic.gov.au/about-asic/corporate-publications/newsletters/asic-corporate-insolvency-update/asic-corporate-insolvency-update-issue-10/>

[28] ASIC Report 658 (April 2020): ASIC regulation of registered liquidators: July 2018 to June 2019, <https://asic.gov.au/media/5555304/rep658-published-14-april-2020.pdf>.

[29] ASIC, Annual Report 2020-21, p 105.

[30] ASIC made its decision in relation to the examination of the Arrium director on the basis of information provided to it by the shareholders’ solicitors indicating that a derivative action on behalf of Arrium may be possible and that the examinations would be made for the benefit of shareholders and creditors of Arrium. These claims were abandoned at hearing. However, the High Court did not consider this fatal to the appeal.

[31] Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42 at [124]-[126], [153] (Jacobson J).

[32] Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42 at [6] (North J), [131] (Jacobson J); Ryan v Australian Securities and Investments Commission [2007] FCA 59 at [60] (Gyles J);

[33] Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42 at [16] (North J).

[34] Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42 at [160] (Jacobson J).

[35] See Re Arrium [2018] NSWSC 747 at [21].

[36] For instance, preliminary discovery under Division 7.3 of the Federal Court Rules 2011 (Cth).

[37] Walton at [170] (Edelman and Steward JJ).

[38] The dissenting judgment (Kiefel CJ and Keane J) adverted to this possibility in Walton at [86].

[39] Oswal v Burrup Holdings Limited [2011] FCA 609 (where receivers and managers had been appointed to the company).

[40] See Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473 at [98] (Beach J).