In the matter of Kimberley Diamond Company Limited [2016] NSWSC 1963

In the matter of Kimberley Diamond Company Limited [2016] NSWSC 1963

Pending criminal proceedings against an examinee do not provide a basis for adjourning or staying the examination. However, the pendency of criminal prosecution in this case constitutes 'special circumstances' within the meaning of s 597(4) of the Corporations Act 2001, enlivening the discretion to order the examination of Mr Alexander be conducted in private; no such special circumstances were present for Mr Sainty.

Jurisdiction
Australia
Judgment Date
05 February 2016
Procedural Posture
Corporations–related Interlocutory Application / Application for Adjournment or Private Examination Pending Outcome of Criminal Proceedings
Outcome
Application to adjourn or stay examination dismissed; order made for Mr Alexander's examination to be in private; application for private examination for Mr Sainty dismissed; costs ordered against applicants.
Legal Topics
['examination of Officers' 'adjournment for Pending Criminal Proceedings' 'private/public Examination Discretion' 'privilege Against Self Incrimination']
['corporations Law' 'insolvency' 'civil Procedure'] ['examination of Officers' 'adjournment for Pending Criminal Proceedings' 'private/public Examination Discretion' 'privilege Against Self Incrimination']

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Procedural Posture

Corporations–related Interlocutory Application / Application for Adjournment or Private Examination Pending Outcome of Criminal Proceedings

Legal Issues

  1. 1 ["Whether pending criminal charges against an examinee justify adjourning or staying a liquidator's examination under the Corporations Act 2001" 'Whether an order for private examination should be made under s 597(4) of the Corporations Act 2001 where criminal proceedings are pending against the examinee' 'Whether special circumstances exist to permit a private examination']

Ratio Decidendi

Pending criminal proceedings against an examinee do not provide a basis for adjourning or staying the examination. However, the pendency of criminal prosecution in this case constitutes 'special circumstances' within the meaning of s 597(4) of the Corporations Act 2001, enlivening the discretion to order the examination of Mr Alexander be conducted in private; no such special circumstances were present for Mr Sainty.

Court Disposition

Application to adjourn or stay examination dismissed; order made for Mr Alexander's examination to be in private; application for private examination for Mr Sainty dismissed; costs ordered against applicants.

Orders

  • ['Pursuant to (CTH) Corporations Act 2001, s 597(4), the examination of Alexandre Alexander be held in private.' 'Until further order, the conduct of the examination and the transcript thereof be kept confidential and not disclosed to any person other than the liquidators, their legal representatives and consultants...