Travel Compensation Fund v Blair & Ors [2003] NSWSC 184

New South Wales Supreme Court

CITATION : Travel Compensation Fund v Blair & Ors [2003] NSWSC 184 revised - 24/03/2003 HEARING DATE(S) : Wednesday 12 March 2003 JUDGMENT DATE : 12 March 2003

JURISDICTION: Equity Division Commercial List JUDGMENT OF : McClellan J DECISION :

CATCHWORDS : SUBPOENAE - seeking to set aside Travel Compensation Fund (Pltf) John Harvey Blair (1D) PARTIES : George Frazis (2D) Scott David Roworth (3D) Gary Kenneth Toomey (4D) Air New Zealand FILE NUMBER(S) : SC 50175/02; 50176/02; 50177/02; 50178/02; 50179/02; 50180/02; 50181/02; 50182/02; 50183/02 I Mescher (Pltf) J Gleeson SC (1D) COUNSEL : R Butler (2, 3D) S D Rares SC/M R Speakman (4D) P M Wood ( Air New Zealand) Vincent ( ASIC) Minter Ellison (Pltf) Corrs Chambers Westgarth (1D) SOLICITORS : Deacons (2,3D) Henry Davis York (4D) Freehills (Air New Zealand)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McCLELLAN J

WEDNESDAY 12 MARCH 2003

50175/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50176/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50177/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50178/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50179/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50180/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50181/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50182/02 TRAVEL COMPENSATION FUND v BLAIR & ORS 50183/02 TRAVEL COMPENSATION FUND v BLAIR & ORS JUDGMENT 1 HIS HONOUR: The defendants have brought motions seeking to set aside four subpoenae issued by the Travel Compensation Fund ("The Fund") in these proceedings. 2 On 20 December 2002 I gave judgment setting aside two previous subpoenae issued by The Fund to the Australian Securities and Investments Commission ("ASIC"). In my reasons for judgment I set out the nature of the primary proceedings brought by The Fund and the forensic purpose which The Fund said was to be served by the subpoenae which it had issued. 3 But for one matter, junior counsel for The Fund, who appears today, relies upon the statement made by senior counsel for The Fund in the previous proceedings. The additional submission made in these proceedings, as I understand it, does not take the matter beyond the previous submissions of senior counsel, but seeks to reinforce the submission that it is legitimate in these proceedings to investigate the financial affairs of the whole Ansett Air New Zealand group during the relevant period. The Fund takes issue with my previous decision in relation to that aspect of the matter. 4 I should record the fact that The Fund has lodged a holding appeal in relation to my previous decision, but has not yet determined whether to seek the necessary leave to appeal. I have already expressed my concern that proceedings of this nature should be disposed of expeditiously and that The Fund should accept the obligation, in the public interest, of ensuring this object is achieved. Applications for leave to appeal interlocutory rulings should accordingly be made, if at all, in a timely manner. 5 When the problems of the previous subpoenae were before me last year, I was careful to ask senior counsel to articulate the forensic purpose of the subpoenae, having regard to the issues to be litigated in the main proceedings. Senior counsel's remarks and my response to them are apparent from my reasons for judgment (see paragraphs 27, 28 and 29). 6 The form of the present subpoenae and the arguments put to support them, do not acknowledge the reasons and conclusions I expressed on 20 December 2002. If The Fund seeks to challenge those reasons and conclusions, the appropriate course is to prosecute the application for leave to appeal. If not, fresh subpoenae should be framed to accord with the principles which I identified. 7 I shall deal with each of the subpoenas in turn.