Reported Decision : 41 ACSR 276 New South Wales Supreme Court CITATION : Leisure Developments (Qld), application of [2002] NSWSC 248 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3946/98 HEARING DATE(S) : 25 February, 4, 8, 11, 12, 13 March 2002 JUDGMENT DATE : 19 March 2002 PARTIES : William Robert Ell, Allan Edward Keast, Colin Graeme Allerdice, John Robert Thomas, Raymond Phillip Fazzolari, Peter Grattan French, Hugh Martin, James Norman Etherington, Peter Lockyer, Douglas Arthur Trood, Leda Commercial Properties Pty Ltd, Leda Finance Pty Ltd, Leda Pty Ltd, Leda Holdings Pty Ltd, Leisure Management Pty Ltd (Applicants) Christopher John Palmer (Respondent) JUDGMENT OF : Austin J COUNSEL : F M Douglas QC with W G Muddle (Applicants) N Cotman SC with I Young (Respondent) SOLICITORS : Paul Bard (Applicants) Australian Government Solicitor (Respondent) CATCHWORDS : PRACTICE AND PROCEDURE - interlocutory process by examinees to set aside examination summonses and orders for production on grounds, inter alia, of abuse of process - examinees' application for access to liquidator's affidavits supporting issue of examination summonses - examinees' notice to produce to liquidator to support application to set aside examination summonses - relevant principles LEGISLATION CITED : Corporations Act 2001 (Cth) s 596(C)(2) Donnelly v Davison (2000) 105 FCR 1 Freshkept Technology Pty Ltd (in liq) v Goodwin [2000] VSC 500 (28 November 2000) Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160 CASES CITED : Re BPTC Ltd (in liq) (1993) 10 ACSR 756 Re Excel Finance Corporation Ltd (1994) 52 FCR 69 Re Hugh J Roberts Pty Limited (in liq) [1970] 2 NSWR 582 Re Moage Ltd (in liq) [1997] 719 FCA (1 August 1997) (Mansfield J) DECISION : Access to liquidator's affidavit granted; access to produced materials granted, subject to masking of identity of potential examinees IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J TUESDAY 19 MARCH 2002 3946/98 IN THE MATTER OF LEISURE DEVELOPMENTS (QLD) PTY LTD (IN LIQ) JUDGMENT (Revised 21 March 2002) 1 HIS HONOUR: This judgment relates to a dispute about access to documents that have been produced to the Court. The applicants seek access to those documents in aid of their claim for relief against examination summonses and orders for production which are directed to them. The liquidator, as respondent to the application, seeks to deny them access to the documents. The issues presented by the claim for access to the documents depend on an understanding of the applicants' grounds for challenging the examination summonses and orders for production, and consequently some facts relating to companies in the Leda group and their disputes with the Australian Taxation Office ("ATO"). The winding up of LDQ 2 Christopher John Palmer was appointed liquidator of Leisure Developments (Queensland) Pty Ltd (in liquidation) ("LDQ") on 16 October 1998, by order of this Court on the company's own application. At the time when it was placed in liquidation, LDQ was a member of the Leda group of companies. Broadly speaking, the ten individuals who are applicants were directors or secretary of, or advisers to, the Leda group companies during the period from 1991 to 1997. The five companies which are applicants are members of the Leda group. 3 A Report as to Affairs was completed by one of the directors of the company on 30 October 1998. The Report revealed that the ATO was a creditor of LDQ claiming to be owed $17,580,865. It said that the amount was not admitted as owing because the income tax assessments giving rise to the ATO's claim were the subject of an appeal to the Administrative Appeals Tribunal. 4 The issue involved in the proceeding before the Administrative Appeals Tribunal concerned whether the profit made on a hotel development was assessable on revenue account to LDQ, with the consequence that no carry forward tax losses were available to extinguish future income of LDQ as beneficiary of a trust called the Leisure Developments Trust. Subsequently the Administrative Appeals Tribunal dismissed the taxpayer's appeals: Case 12/2000 (2000) 45 ATR 1059, 2000 ATC 210. No appeal was lodged from that decision. 5 The Report as to Affairs stated that as at the date of the report, LDQ had an asset of declared value of $100, being its holding of units in the Leisure Developments Trust. The Report also disclosed a contingent asset described as "third plaintiff interest in Supreme Court of NSW common law claim against Price Waterhouse", having a gross value "in excess of $18M". The common law proceeding was commenced in 1997, before the winding up order was made, and apparently alleges negligent advice by Price Waterhouse as to the availability of tax losses at the time LDQ and the Leisure Developments Trust were acquired by the Leda group. Corporate structure 6 The five companies who are applicants are Leda Pty Ltd, Leda Holdings Pty Ltd, Leda Commercial Properties Pty Ltd, Leda Finance Pty Ltd and Leisure Management Pty Ltd. I shall call them "the Leda group companies", although it should be remembered that LDQ was also part of the Leda group for a substantial period. The relationships between the companies, and the Leisure Developments Trust and the Tuggeranong Town Centre Trust ("TTCT") which they controlled, is complex and apparently controversial in some respects. I was assisted by a diagrammatic representation of entities and transactions which was handed up by the applicants and marked for identification as MFI 1. The liquidator does not accept the accuracy of MFI 1 in every respect, but it is sufficient for present purposes to summarise what is represented in the diagram, without at this stage making any findings of fact on the subject. 7 According to MFI 1, commencing in 1991, Leda Pty Ltd owned 100% of the shares of LDQ, Leisure Management and Leda Commercial Properties. Leisure Management was the trustee of the Leisure Developments Trust. LDQ held 100 units in that trust and was the sole unit holder. Leda Commercial Properties was the trustee of the TTCT, which owned a valuable shopping centre. In 1992 the Leisure Developments Trust acquired 60 million units in TTCT for $1 each, and later acquired more units by way of capitalised distributions, so that it held 83,593,198 units. The units were redeemed in 1997 at 80.59 cents. Leda owned 30 million units in TTCT which were redeemed in 1992, in a transaction called the "position paper" transaction. 8 At one stage the Leisure Developments Trust had assets in the form of units in the TTCT which cost $60 million, and it also earned income during the period in which it held those units, the income being converted into further units. LDQ had an interest in those assets and that income as sole unit holder of the Leisure Developments Trust. It appears that LDQ's tax liability arose from its beneficial entitlement to distributions from TTCT to the Leisure Developments Trust. 9 It is said that LDQ now has no assets of value. This is because the units in the TTCT held by the Leisure Developments Trust were redeemed for an amount less than the cost of the acquisition of the units and the amount of the capitalised income. Consequently, it is said, LDQ is unable to meet its tax liability. The "position paper" transaction 10 On 31 July 2000 the ATO wrote to Mr Thomas of Leda Pty Ltd enclosing a "position paper" setting out the Commissioner's views on the redemption of 30 million units in the TTCT. Mr Jonathan Todd was named as one of the two officers who were available to discuss the matters raised in the paper. As with the corporate structure, it is unnecessary for me to make findings of fact with respect to the allegations in the position paper. What follows is a summary of assertions in the paper. 11 Leda acquired 30 million B class units in the TTCT on 25 February 1987 at a subscription price of $1 per unit. Leda also held A units. The trustee of the TTCT was Leda Commercial Properties, a subsidiary of Leda. Leda Holdings held D units. 12 On 16 July 1991 Leda acquired all the shares in the LDQ and Leisure Management, the trustee of the Leisure Developments Trust, thereby acquiring trustee and beneficiary of that trust. That was the point of commencement of the interest of Leda and its directors and officers in the affairs of LDQ and the Leisure Developments Trust. 13 On 20 January 1992 the 30 million B units owned by Leda were redeemed for, initially, their par value of $30 million. On the same day Leisure Management as trustee for the Leisure Developments Trust acquired 60 million B units in the TTCT for the benefit of LDQ as its sole unit holder, for $60 million. From that time until 15 May 1997, the Leisure Developments Trust had an asset (its B units) which increased as distributions of income were made by the TTCT and capitalised into B units issued to Leisure Management as trustee of the Leisure Developments Trust. 14 On 20 September 1994 Leda and the trustee and unit holders of the TTCT entered into an agreement by deed to the effect that the redemption price paid to Leda in 1992 should have been $128,500,000 rather than $30 million. 15 The issue between the ATO and Leda is whether on 20 January 1992 Leda made an assessable capital gain of $98,500,000 (ignoring indexation) by reason of redemption of the 30,000 units, for which it had paid $30 million, of effectively $128,500,000. The ATO claims that an assessable capital gain was derived by Leda in the year ended 30 June 1992. 16 Several points of significance emerge from this brief description. One is that Mr Todd, to whom I shall refer again, was closely involved in the taxation affairs of the Leda group as an officer of the ATO before he joined the Australian Government Solicitor. Another is that during the period from July 1991 to the time of its winding up in October 1998, LDQ was managed by directors and officers of the Leda group, and so the examination of those individuals is not necessarily an investigation of the affairs of entities other than LDQ. The third point is that ex facie, the taxation dispute between the Leda and the ATO has very little to do with the examinable affairs of LDQ. A possible link, the only one emerging from this evidence, seems to be that the liability of the TTCT to pay Leda an additional $98,500,000 under the 1994 deed presumably diminished the value of the Leisure Developments Trust's unit holding in the TTCT, and this may have contributed to the loss suffered by the Leisure Developments Trust when its unit holding in the TTCT was redeemed in 1997 - and hence the loss of value of the units in the Leisure Developments Trust held by LDQ, leading to LDQ's inability to meet its tax obligation. The examination summonses and orders for production 17 On 17 December 2001 Mr Palmer caused examination summonses to be issued under ss 596A and 596B of the Corporations Act to certain "examinable officers" of LDQ, and other persons who may be able to give information about the examinable affairs of that company. The examinations were scheduled to begin on 18 March 2002, but they have been postponed in the circumstances that I shall describe. 18 In each case the examinee is required under s 596D (2) to produce three categories of "books" relating to LDQ or its examinable affairs. Category (a) relates to documents concerning transactions involving any of the 5 Leda group companies and LDQ, relating to the TTCT during the period from 16 July 1991 to 30 December 2000. Category (b) relates to documents evidencing expert advice in relation to the financial affairs of Leisure Management, Leda and Leda Holdings as unit holders in the TTCT and Leda Commercial Properties as trustee of the Trust, especially with respect to taxation exposure on dealings in units in the TTCT during the same period. Category (c) relates to documents evidencing expert advice in relation to the financial affairs of LDQ as unit holder in the Leisure Developments Trust and Leisure Management Pty Ltd as trustee of that Trust, especially with respect to taxation exposure on dealings in units of the Trust during the same period. 19 On the same day Mr Palmer also caused orders for production to be issued to a number of companies, including the five Leda group companies. In all five cases, the notice is limited (except in one respect) to the period 16 July 1991 to 30 June 1997, and requires production of documents relating, approximately speaking, to the assets of the TTCT and dealings in units of the TTCT. Each of the five notices also requires production of documents concerning expert advice relating to the assets and units of the TTCT and the Leisure Developments Trust, without any stated time period. In the case of Leda Finance and Leisure Management, the notice also requires production of documents relating to the assets of the Leisure Developments Trust and dealings in units of that Trust. In the case of Leda Commercial Properties, which is the trustee of the TTCT, the notice requires production of the deed of Trust and variations to it, and the financial statements and management accounts of the company. In the case of Leisure Management, which is the trustee of the Leisure Developments Trust, the notice requires production of financial statements and management accounts of that company. The application to challenge the examination summonses and orders for production 20 By interlocutory process filed on 19 February 2002, all except one of the recipients of the examination summonses, and the five Leda group companies, have challenged the examination summonses and orders for production. They seek orders which may be grouped as follows: · orders setting aside the orders for production against the Leda group companies; · orders setting aside the examination summonses (other than those directed to William Robert Ell and Allan Edward Keast); · orders setting aside the requirement for the examinees (including Mr Ell and Mr Keast) to produce documents; · orders limiting the subject matter of the examinations under s 596F (1), generally with a view to restricting the subject matter to the insolvent administration of LDQ, excluding anything relating to the actual or potential tax liability of the Leda group companies. 21 (I note in passing that on 14 March 2002 the applicants wrote to my associate foreshadowing an application to amend the interlocutory process to include various injunctive orders against the liquidator, including an order restraining the liquidator from engaging his existing counsel and solicitor in relation to any aspect of the liquidation. The application to amend the interlocutory process to add these additional prayers for relief has not yet been heard.) The grounds of the application 22 The applicants seek this relief on two grounds, namely that the liquidator's applications for the issue of the examination summonses and notices to produce, and the orders for production, are an abuse of process and that the notices to produce and orders for production have been drawn too widely. It will be necessary to consider these grounds more fully when the hearing of the application has been concluded, but it is helpful to outline the ingredients of these grounds as a prelude to understanding the dispute about access to documents. 23 The ingredients of a case of abuse of process were described by the Full Federal Court in Re Excel Finance Corporation Ltd (1994) 52 FCR 69. The Court held (at 89) that a finding of abuse of process depends upon the predominant purpose of the person using the Court's process. Where a person other than a liquidator (such as a creditor or receiver authorised by the Commission to conduct examinations) uses the power to obtain an examination summons for the principal purpose of furthering its cause in litigation against the examinee or third parties, there is an abuse of the power (at 93). However, where the person applying for the issue of an examination summons is a liquidator, the mere fact that proceedings have been commenced or are contemplated by the liquidator does not itself constitute abuse of process (at 91). Thus, the applicants' case depends upon showing that the liquidator had a predominant purpose that was offensive. The applicants are seeking access to certain documents which may, they believe, assist them to prove their case. 24 Of course, in order to make out their case, they must come to grips with the special position of a liquidator conducting examination summonses, recognised in such cases as Re Hugh J Roberts Pty Limited (in liq) [1970] 2 NSWR 582 and Re Moage Ltd (in liq) [1997] 719 FCA (1 August 1997) (Mansfield J). 25 As to the second ground, the standard of precision to be met by an order for production was considered by Bryson J in Re BPTC Ltd (in liq) (1993) 10 ACSR 756. The practice is to require production of documents, by persons other than those who are the subjects of examination orders, under Part 36 rule 12 of the Supreme Court Rules. That power can only be exercised where the production of documents is required for the purpose of exercising the power to conduct an examination (at 762). While the power to compel production of documents is a wide one, it is ancillary to an examination order, and cannot require the production of documents independently of the examination of particular individuals. An order for production which had the effect of compelling production of documents which were not required for the examination would be oppressive and in excess of the power to make such an order (at 763). Where a call for production goes beyond these limits, it may not be possible to sever the call so far as it covers documents ancillary to the examination order from its coverage of other documents, and in such a case the whole order for production or notice to produce may need to be set aside (at 766). 26 At this stage the applicants' case has not been fully presented, either in evidence or in submissions. However, the applicants say that an abuse of process is indicated by the breadth of the categories of documents required to be produced; the apparent focus of those categories upon the taxation affairs of companies in the Leda group other than the LDQ; the absence of any obvious purpose of, or scope for, recovery of assets in the winding up of LDQ; the funding of the liquidator by the ATO; and the fact that Mr Todd, who was intimately involved in the preparation of the position paper and dealings with directors and officers of Leda and its subsidiaries when he was an officer at the ATO, has since that time become the solicitor for the liquidator, instructing counsel with respect to the examination summonses and orders for production and the present proceedings. The applicants' notice to produce 27 In aid of their claim to relief, the applicants issued a notice to produce to the liquidator on 19 February 2002. It required production of documents evidencing any arrangements for the payment of the liquidator's fees and the identity of lawyers acting for the liquidator, in relation to the orders for production made to the Leda group companies for the examination summonses. It also required production of documents evidencing communications between the liquidator and the Australian Taxation Office relating to the orders for production made to the Leda group companies and the examination summonses. 28 On 25 February 2002 the matter came before me in the Corporations List. The applicants called on their notice to produce, whereupon counsel for the liquidator applied, with leave, to set aside the notice to produce. I dismissed that application, delivering brief ex tempore reasons. I decided to allow the call to proceed and have the documents produced to the Court, and then to deal with any contest as to access. 29 Counsel for the liquidator indicated that his client would provide the applicants and my associate with a list of the documents in the liquidator's possession relating to the applicants' notice to produce. The list was circulated on 3 March 2002. It divided the documents into three categories. The first category was documents over which no claim to legal professional privilege or confidentiality had been made by the liquidator. The second was documents over which the liquidator claimed legal professional privilege, and the third was documents over which the liquidator claimed confidentiality. 30 Counsel for the liquidator contended that I should withhold access to all three categories of documents. As to the first, however, the most he could say was that in principle, a liquidator's communications with the person funding his examinations should not be made available to the examinees, because the law treated them in the same way as the liquidator's affidavit in support of the issue of the examination summonses, which should not be made available unless a good reason for doing so is demonstrated. I decided, however, that as the documents had been produced to the Court pursuant to my earlier decision and there was no good ground for denying access, access should be allowed as it is in the normal course when documents are produced to the Court. Therefore there is nothing left to decide with respect to the first category. Nor is there any issue before me now with respect to the second category, which the parties have agreed to deal with later. 31 The issue relates to the third category. The claimed confidentiality was based, at least in part, on the observation of Warren J in Freshkept Technology Pty Ltd (in liq) v Goodwin [2000] VSC 500 (28 November 2000). There her Honour said (paragraph 10) that "it is proper for an applicant [that is, someone in the position of the liquidator in this case] to conduct him or herself in a manner that is secretive and the applicant should not be asked to verify reasons for wanting an examination as the process is inquisitorial". I shall also deal with the applicants' claim, made orally at the hearing, for access to the liquidator's affidavit supporting the issue of the examination summonses and orders for production. Access to the liquidator's affidavit and documents in the third category 32 Counsel for the applicants strenuously contended that I should treat his clients' application for access to the category 3 documents in the same way as any other claim for access to produced documents. He denied that it was necessary for him to show even an arguable case of abuse of process or excessive width. He pointed out that the liquidator had not adduced any evidence to support his contention that documents in the third category were connected with the liquidator's affidavit and therefore entitled to a measure of confidentiality. 33 Taking the last point first, it is clear that the documents in the third category are connected to the matters dealt with in the liquidator's affidavit. The documents comprise · a covering letter enclosing a draft affidavit; · two invoices including narrations of work undertaken in the matter; and · two e-mails attaching a draft of an affidavit and dealing with the identity of some examinees. The description alone is sufficient to indicate a connection. My perusal of the documents confirms that the connection is present. 34 As to whether it is necessary for the applicants to show that they have an arguable case, both sides referred to the Full Federal Court's decision in Re Excel Finance Corporation. Their Honours stated (52 FCR at 93) that "the Court has a discretion to order the disclosure, to a prospective examinee, of material lodged in support of the application for an examination order and should do so where the justice of the case so requires". However, they acknowledged that there are sound reasons why inspection should not be freely granted, "for so to do could afford to an examinee information which could permit the examination process to be frustrated", and "there could also be confidential information which should properly be withheld"(at 94). The question is whether the Court believes that it may be unable fairly and properly to dispose of the application before it if part of the evidence is withheld from the person against whom the order is sought. 35 They continued (at 94): "An applicant will not be permitted access to such material to enable him or her to "fish" for a case. There must be material before the Court from which it appears that the applicant has an arguable case, to which the material is relevant, before the discretion should be allowed in favour of that applicant. But once that appears the discretion will normally be exercised in favour of the application." 36 In that case a receiver and manager appointed by a trustee for debenture holders was authorised by the Commission to seek an examination order against a director, who shortly afterwards (and before the examination) was sued by the trustee on behalf of the debenture holders for damages. The director claimed that the application for issue of the examination summons was an abuse of process because the receiver's purpose was to gather evidence in aid of the trustee's proceedings. The Court held (at 94) that the commencement by the trustee for debenture holders of proceedings against the director raised, without more, the possibility that the receiver had sought the examination summons against the director for an improper purpose. Material filed in support of the application, in which the receiver stated the purpose of the application, was clearly relevant. The judge at first instance was wrong to refuse inspection to the director. 37 Thus, while it must appear to the Court that the party seeking inspection has an arguable case to which the material is relevant, before inspection is granted, the arguable case may emerge from the undisputed facts without any necessity to adduce specific evidence of the liquidator's motives. 38 It seems to be accepted that the approach taken in the Excel case is applicable both to the liquidator's affidavit and other documents subject to a claim for inspection by an examinee. I do not regard Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160 or Donnelly v Davison (2000) 105 FCR 1 as adding to the analysis in any relevant respect. The main difference is that the liquidator's special position in the examination process (see Freshkept Technology Pty Ltd (in liq) v Goodwin, para 10 for a convenient summary of the principles) affects the arguable case that must be shown. 39 In my opinion the correct modern approach to an application for inspection of the liquidator's affidavit is exemplified in the decision of Mansfield J in the Moage case. Beginning with the statutory provision, s 596C (2), according to which the affidavit is not available for inspection except so far as the Court orders, his Honour drew attention to the special position of the liquidator (at page 16), noting (at page 17) that the possibility that the liquidator will gain a forensic advantage from the examination does not dissuade the Court from allowing the examination to proceed. He noted the "arguable case" requirement of Excel, observing that this was not used as a refined term of art. 40 Here, as in that case, the "collateral proceeding" (here, the tax dispute between Leda and the ATO) involves serious and substantial allegations. The liquidator is required to be satisfied that there is an appropriate evidentiary foundation for the making of those allegations, and is required to present his case for conducting examinations with that objective in mind. The liquidator's basis for seeking the issue of examination summonses is highly material to the issues which the applicants seek to raise. If, therefore, they have an arguable case, there are persuasive grounds for allowing them access to the liquidator's affidavit. 41 That being so, I have followed the procedure adopted by Mansfield J in approaching this issue. I have examined the liquidator's affidavit carefully. It is striking that the affidavit contains, so far as I can see, very little in the way of new factual information. Indeed the voluminous exhibits to it appear all to be documents that would be available to the applicants in any case. What is of interest, is a statement by the liquidator of the reasons for the examination. The statement of the persons to be examined and documents to be produced contains nothing not already known to the applicants. 42 In my opinion, it is of critical importance for the applicants to be informed about the specific matter which the liquidator intends to investigate by the examination process. Without knowing and being able to assess that information, the applicants cannot present a plausible case of abuse of process. I cannot detect any relevant prejudice to the liquidator from making this disclosure. If they have an arguable case in the requisite sense, I would not hesitate to make an order providing the applicants with access to the liquidator's affidavit. I do not regard this as a matter where there needs to be any restriction on access, though I would be prepared to hear submissions on that point. 43 Counsel for the liquidator strenuously contended that the position with respect to the category 3 documents was the same as the position with respect to the liquidator's affidavit. His point was that access to those documents should be granted only if the applicants were able to establish some good reason for inspecting them. I accept that most and perhaps all of the category 3 documents should be given the same kind of protection, generally speaking, as the liquidator's affidavit receives, at least under the general law. It would be anomalous if the Court were to be specially protective of the affidavit in its final form while allowing drafts of the affidavit, memoranda concerning it and invoices detailing the work done to prepare it to be inspected by the examinees on a more liberal basis. However, it seems to me that this outcome is achieved by the principles enunciated by the Full Court in the Excel case. 44 I believe that if the documents in category 3 are withheld from the applicants, I may be unable fairly to dispose of their application for relief against the examination summonses and notices to produce. While the information in the category 3 documents does not appear to me to be compelling, it may amount to something when added to other evidence upon which the applicants wish to rely, not all of which has been adduced at this stage. The prejudice to the liquidator in releasing this information appears to me to be quite low, and avoidable. As far as I can see, the only specific prejudice to the liquidator might be that some potential examinees (other than the applicants) are identified in the documents. The identity of those examinees is irrelevant to the applicants' challenge to the examination summonses and orders for production, and therefore the correct course is to direct that the names be masked in the document released to the applicants. But in my opinion nothing else should be masked. The liquidator has produced to the Court two versions of the documents, one unmarked and the other masking substantial parts of the text, relating to the interaction between Mr Todd and the liquidator and his staff with respect to the contents of the liquidator's affidavit as well as to the identity of potential examinees. I see no proper basis for masking any of that information except the identity of the examinees. 45 In the present case there is, in my view, an arguable case to support the applicants' challenge to the examination summonses and orders for production. This is not a case where the liquidator is engaging in or planning a proceeding for recovery of unfair preferences for distribution to the creditors of the company in liquidation. Here it is undoubtedly arguable that the notices to produce and the orders for production extend beyond what might be investigated with respect to the affairs of LDQ, and in their terms extend to documents relevant to the taxation position of Leda and other companies in the Leda group but not to the position of LDQ. It is arguable that production of such documents has no plausible link to recoveries for the ATO in its capacity as a creditor of LDQ. When one takes into account that the liquidator's investigations are being funded by the ATO, that the ATO claims an enormous amount of tax from Leda, and that one of the case officers of the ATO when the position paper was prepared is now the solicitor for the liquidator actively instructing counsel in the examination process and the present proceeding, the arguable case of abuse of process is strengthened. If an offensive purpose is found to be present, it is not to the point that the ATO might have acquired information relevant to Leda's alleged tax liability by using its own coercive powers. 46 It is true that in this case the application has been brought well after the examination summonses were issued. No doubt the liquidator will seek to make something of that on the resumption of the hearing of the principal application. The delay does not prevent me from concluding, however, that there is an arguable case sufficient to justify an order granting access. Conclusions 47 I shall make orders permitting the applicants to have access to the liquidator's affidavit (subject to submissions as to whether the confidentiality of the affidavit as regards third parties should be specifically protected) and to copies of the category 3 documents, in which only the identity of potential examinees is masked. 48 The hearing of this case has been rendered difficult because much more hearing time has been needed than counsel anticipated when the matter came before me in the Corporations List on 25 February 2002. I have had to find additional hearing time so that the various applications can be concluded. The most recent hearing, on Tuesday 12 March 2002, extended well beyond 4 pm. The argument on that occasion developed with some complexity. At the end of that day, the parties had completed their submissions with respect to access to the liquidator's affidavit and the category 3 documents. Counsel for the applicants informed me that he wished to have the Court's decision on that question before closing his evidence on the principal application. He said that if I granted access he would be able to complete his evidentiary case and submissions on the principal application shortly thereafter. 49 At that time the parties and I had in mind that it still may be possible to make all relevant decisions before 18 March 2002, when the examinations were scheduled to commence. However, after reviewing the matter on the evening of 12 March I decided that completion of the hearing and delivery of reasons for judgment on the question of access and on the principal application within the space of a few days would be too rushed, having regard to my other commitments to hearings. I ascertained from the Deputy Registrar that there were some examination dates available in June, and subsequently the parties decided that the best course would be to take those dates and vacate the examination dates beginning on 18 March. 50 Therefore, after access has been granted pursuant to these reasons for judgment, I shall complete the hearing of the principal application to challenge the examination summonses and orders for production at the earliest available time. I have proposed to the parties that the hearing resume at 12 noon tomorrow. ********** Last Modified: 04/12/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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