HIH Insurance Ltd [2002] NSWSC 243

Reported Decision : 41 ACSR 66 (2002) 20 ACLC 1003

New South Wales Supreme Court

CITATION : HIH Insurance Ltd [2002] NSWSC 243 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1799/01 HEARING DATE(S) : 28/03/02 JUDGMENT DATE : 28 March 2002

PARTIES : Anthony Gregory McGrath and Alexander Robert Mackay Macintosh as Liquidators of HIH Insurance Ltd (In Liquidation) - Applicants JUDGMENT OF : Barrett J

COUNSEL : Mr B.W. Collins QC - Applicants SOLICITORS : Blake Dawson Waldron - Applicants CATCHWORDS : CORPORATIONS - winding up - directions to liquidators - direction given LEGISLATION CITED : Corporations Act 2001 (Cth) Royal Commissions Act 1902 (Cth) DECISION : Direction given

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

THURSDAY 28 MARCH 2002

1799/01 - ANTHONY GREGORY McGRATH and ALEXANDER ROBERT MACKAY MACINTOSH IN THEIR CAPACITY AS LIQUIDATORS OF HIH INSURANCE LTD AND SUBSIDIARIES (IN LIQ)

JUDGMENT

1 In the course of observations made on 25 March ([2002] NSWSC 231), I referred to the possibility of action by the HIH liquidators to determine, in appropriately constituted proceedings, the question whether they could lawfully refuse to deliver documents to the HIH Royal Commission in response to a notice under s.2(3A) of the Royal Commissions Act 1902 (Cth) where those documents were the subject of legal professional privilege. 2 The liquidators do not wish to pursue that course, particularly as they consider that it would probably not produce any clear-cut resolution, at a commercial level, of the concerns that prompted them to approach the court for directions last Friday, 22 March. However, the significance of that possibility has now receded, in view of the results of further discussions between representatives of the liquidators and representatives of the HIH Royal Commission. Those discussions have produced a revised basis for a protocol to be applied to documents produced by the liquidators, in compliance with the s2(3A) notice, where it appears that legal professional privilege belonging to the relevant HIH company subsists in those documents. 3 The proposed new protocol is outlined in a letter of 26 March 2002 from Mr Daley, principal solicitor assisting the Commission, to Mr Mainsbridge of the liquidators' solicitors, Blake Dawson Waldron. Omitting formal and introductory parts, the letter reads as follows: "Having canvassed various alternative approaches I confirm that the Commission would agree to the following revised protocol.