Hamilton v Oades [1989] HCA 21

High Court of Australia Mason C.J. Deane, Dawson, Toohey and Gaudron JJ. Hamilton v Oades [1989] HCA 21

ORDER Allow the appeals with costs. Set aside the orders of the Court of Appeal and in lieu thereof order that the appeal to that Court be dismissed with costs. Order that the intervener pay its own costs in the Court of Appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1989, April 12 Mason C.J.

On 1 September 1986 a winding-up order was made against Darlington Commodities Pty. Ltd. ("D.C.L."). By that order the appellant, Mr. Hamilton, was appointed as liquidator. On 3 April 1987 Mr. Oades ("the respondent") was charged with nineteen criminal offences in relation to the affairs of D.C.L. and an associated company. A hearing took place in the Local Court on 6 April 1987 and committal proceedings were fixed for February 1988. In relation to certain of the charges the respondent filed notices described by counsel as "committal for sentence on plea of guilty". Sentence is yet to be passed in relation to these charges and until that point is reached the respondent may withdraw the notices. The remaining charges are yet to proceed to committal. Accordingly, all the charges are still pending.

On 9 April 1987 an order was made upon the application of the appellant pursuant to s. 541 of the Companies (New South Wales) Code ("the Code") requiring the respondent to attend before the Supreme Court of New South Wales on 25 May 1987 in order to be examined on matters relating to the promotion, formation, management, administration and winding up of D.C.L. The examination was adjourned and ultimately commenced on 17 August 1987 before a Deputy Registrar of that Court.

In the course of the examination on 17 August 1987, counsel for the appellant asked the respondent the following question: "For how long before 1985 were you a director of Darlington Commodities Pty. Ltd.?" Counsel for the respondent objected to the question on the basis that five of the pending charges related to offences alleged to have been committed by the respondent in his capacity as a director of D.C.L. prior to 1985.