RE BPTC LTD (IN LIQUIDATION) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 8 August 1992, 8 August 1992 [1992] NSWCA 27 PRACTICE and PROCEDURE — reference of proceedings to Court of Appeal — application for stay of orders for production of documents and examination of company officers pending decision of Court in proceedings raising related point — stay granted for period — proceedings otherwise returned to Equity Division. PRACTICE and PROCEDURE — Court of Appeal — pending judgment on summons for leave to appeal — point affects parties to proceedings in Equity Division of Supreme Court — Judge of that Division (McLelland J) refers entire proceedings to the Court of Appeal for the provision, if appropriate, of a stay — held: (by Kirby P): A stay of orders for production of documents and for examination of company officers should be ordered until the judgment is handed down in the earlier Court of Appeal proceedings or a fixed future date, whichever is earlier. Kirby P These proceedings are before the Court pursuant to a reference made byMcLelland J on 7 August 1992. His Honour made an order under Pt12 R2 SCR referring the whole of certain proceedings before him to the Court of Appeal. He did so after discussions with me, it seeming convenient to his Honour, and to this Court, that the whole of the proceedings should be before the Court for the purpose of consideration of the application now to be determined. The proceedings are complex. I will not pause to explain them in any detail. The purpose of the reference is so that this Court can consider whether, in the exercise of its powers, it ought to grant relief in respect of two pending proceedings which affect the parties. I am dealing with the matter for the Court pursuant to the powers conferred on me by s46 of the Supreme Court Act 1970. The first proceeding which is relevant is an obligation to comply with an order for production of documents. This order was originally to be complied with on 10 August 1992. That date has now been extended. The order now requires compliance on or before 17 August 1992. The second is a proposed examination of Messrs Turnbull and Short which is returned to take place on 31 August 1992. The claimants before the Court challenge the order for production as being too wide. However, they have more fundamental challenges, one of which raises a point which was earlier raised before this Court in Hongkong Bank of Australia v Murphy. Those proceedings were heard on a summons for leave to appeal by a Court of three judges over which the Chief Justice presided. The decision in that proceeding has been reserved. It is my belief that the decision will not be long delayed. However, that cannot be said with certainty, having regard to the normal problems which attend the completion of reasons for judgment in contested proceedings in this Court. Upon the resolution in one way of the decision in Hongkong Bank of Australia v Murphy, some or all of the issues which are in contest between the present parties might disappear. It is therefore efficient that the proceedings for the 2 UNREPORTED JUDGMENTS production of documents and the examination of Messrs Andrew Turnbull and Peter Short should be delayed at least for a short time in the hope that, by the time fixed, the decision in the Hongkong Bank of Australia v Murphy will have been handed down, be available to McLelland J and to the parties. It is also just that relief should now be given. Otherwise, McLelland J might proceed to determine the matter, as I would assume he would, on the basis of the law as is challenged in Hongkong Bank of Australia v Murphy only to discover, shortly thereafter, that the principle applied has been reversed by decision of this Court. On the other hand, there are reasons for the proceedings at first instance being dealt with with expedition. Those reasons concern the possible expiry of a writ issued out of the Supreme Court of Victoria and the concerns of a large number of individuals who are affected by the litigation. It is therefore inappropriate to provide the stay for an indefinite period. But it is appropriate, for the reasons which I have stated, to provide such relief until Monday 31 August 1992 or earlier if the decision in Hongkong Bank of Australia v Murphy is handed down before that date. The relief is granted as ancillary to the matter referred into this Court by McLelland J. I have been informed that it would be the intention of some, or all, of the parties, in certain eventualities, to appeal or seek leave to appeal to the Court. On 31 August 1992, if not earlier listed, the Court can decide what is then required having regard to the position as then emerging in relation to the availability of the decision in Hongkong Bank of Australia v Murphy. In the hope that that decision will be available by that date, I will provide relief against the present obligation to produce documents and to submit to examination. Each of those obligations would impose considerable inconvenience upon the persons affected. The orders which I therefore make are: 1. Stay the operation of the orders for production of documents addressed to Burns Philp Trading Co Ltd, Andrew Turnbull and Peter Short until further order of the Court; 2. Stay the examination of Messrs Andrew Turnbull and Peter Short until further order of the Court; 3. Return these proceedings before the Court on the happening of the first of the following events: (a) 31 August 1992 at 9.45 a.m. in motions; or (b) One day after the judgment in the Court of Appeal in Hongkong Bank of Australia v Murphy is delivered by the Court, at 10.15 a.m. on that day. To the intent that on that day further orders will be made, as necessary and appropriate in the light of that judgment, for the relief, if any, that should then be provided to Burns Philp Ltd, Mr Turnbull or Mr Short; 4. Order that the balance of the proceedings be returned McLelland J for hearing; and 5. Order that the costs of the proceedings before this Court be costs in the proceedings before McLelland J. COUNSEL for the Claimants: TF Bathurst QC / R Smith (Burns Philp Trading Co Ltd and Mr A Turnbull), R Margo (Mr P Short) URJ RE BPTC LTD (IN LIQUIDATION) (Kirby P) 3 Counel for the opponents: JC Campbell QC / LS Einstein (Messrs Murphy and Allen) SOLICITORS for the Claimants: Freehill Hollingdale and Page (Burns Philp 5 Trading Co Ltd and Mr A Turnbull), Minter Ellison (Mr P Short) Solicitors for the Opponents: Baker and McKenzie (Messrs Murphy and Allen)