Elks v Kirk - Leave to Appeal Dismissed (Corporations Law)

Original Word Document (99.5 KB) Federal Court of Australia

Elks v Kirk [2026] FCA 460

| Appeal from: | Elks, in the matter of Moreton Resources Limited (Receivers Appointed) [2025] FCA 1670 |

| File number(s): | QUD 42 of 2026 |

| Judgment of: | HALLEY J |

| Date of judgment: | 17 April 2026 |

| Catchwords: | CORPORATIONS – Application for leave to appeal interlocutory judgment discharging examination summonses issued by a registrar under s 596B of the Corporations Act 2001 (Cth) for material non-disclosure, and related orders for production, under r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) (FCCR) – where primary judge also conducted a review de novo of decision by registrar to issue examination summonses and related orders for production under s 35A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – whether the review de novo procedure provided in s 35A of the FCA Act must necessarily apply to an application to discharge summonses for examination issued by registrar for material non-disclosure – where matter conducted differently before the primary judge – where found that decision of primary judge to set aside summonses for examination and related orders for production for material non-disclosure before registrar, independently of a review de novo pursuant to s 35A of the FCA Act, not attended with sufficient doubt to warrant consideration by a Full Court– where found no substantial prejudice to applicant and no issue raised of general importance – application for leave to appeal dismissed with costs |

| Legislation: | Corporations Act 2001 (Cth) ss 596A, 596B, 596F

Federal Court of Australia Act 1976 (Cth) ss 24, 35A

Federal Court (Corporations) Rules 2000 (Cth) r 11.5

Federal Court Rules 2011 (Cth) rr 3.11, 30.34 |

| Cases cited: | Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd (No 3) [2025] FCA 1179; (2025) 187 IPR 348

Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621

Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34

David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd (2024) 114 NSWLR 81; [2024] NSWCA 83

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844

Elks v Melgear Pty Ltd & Ors [2023] QSC 150

Elks, in the matter of Moreton Resources Limited (Receivers Appointed) [2025] FCA 1670

Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

House v The King (1936) 55 CLR 499

Jane v Secatore (Liquidator), in the matter of Last Lap Pty Ltd (in liq) [2021] FCAFC 108

Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91

Moreton Resources Ltd (in liq) & Ors v First Samuel Ltd & Ors [2020] QSC 339

Pitman v Park, in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887

Re Mendarma Pty Ltd (in liq) (2006) 24 ACLC 1611; [2006] NSWSC 1306

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156

Summers v Repatriation Commission [2015] FCAFC 36

Trevor, in the matter of Bell Group NV (in liq) (No 2) (2017) 122 ACSR 418; [2017] FCA 927 |

| Division: | General Division |

| Registry: | Queensland |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Corporations and Corporate Insolvency |

| Number of paragraphs: | 77 |

| Date of hearing: | 10 April 2026 |

| Counsel for the Applicant: | Mr R R Ivessa |

| Solicitor for the Applicant: | Colwell Wright Solicitors |

| Counsel for the First to Eighth Respondents | Mr C A Wilkins KC and Mr H E Hadgraft |

| Solicitor for the First to Eighth Respondents | Colin Biggers & Paisley |

| Counsel for the Nineth, Eleventh and Twelfth Respondents | Mr L Copley and Mr G Moore |

| Solicitor for the Nineth, Eleventh and Twelfth Respondents | HWLE Lawyers |

| Counsel for the Tenth Respondent: | The Tenth Respondent is a litigant in person |

| Counsel for the Thirteenth to Fifteenth Respondents: | Mr B W Wacker |

| Solicitor for the Thirteenth to Fifteenth Respondents: | Johnson Winter Slattery |

| Counsel for the Interested Person: | The Interested Person is a litigant in person |

ORDERS

| QUD 42 of 2026 |

| BETWEEN: | LOUISE MARY ELKS

Applicant | |
| AND: | DARRYL EDWARD KIRK

First Respondent

MATTHEW LESLIE JOINER

Second Respondent

COR CORDIS PTY LTD ACN 097 893 153 (and others named in the Schedule)

Third Respondent | |

| order made by: | HALLEY J |
| DATE OF ORDER: | 17 aPRIL 2026 |
THE COURT ORDERS THAT:

1. The application for leave to appeal dated 21 January 2026 be dismissed.

2. The applicant is to pay the costs of the respondents.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1 The applicant, Louise Mary Elks, seeks leave to appeal from orders of a judge of this Court made on 22 December 2025 setting aside orders made by a registrar of summonses for public examinations and the production of documents: Elks, in the matter of Moreton Resources Limited (Receivers Appointed) [2025] FCA 1670 (primary judgment or PJ). The application for leave to appeal was supported by an interested person, Alexander Jason Elks.

2 The central issue for determination in this application for leave to appeal is whether the Court may set aside orders made by a registrar for material non-disclosure independently of a review de novo of the orders made by the registrar.

3 The orders made by the Registrar that were addressed in the primary judgment were for examinations, examination summonses, and orders for production issued to various examinees pursuant to s 596A and s 596B of the Corporations Act 2001 (Cth) (Act) and r 30.34 of the Federal Court Rules 2011 (Cth) (Rules).

4 By interlocutory applications dated 30 and 31 January 2025, persons and entities represented by Colin Biggers & Paisley, (CBP parties), HWLE Lawyers (HWLE parties) and Johnson Winter Slattery (JWS parties) sought orders setting aside the orders for examination summonses and production made by the Registrar on 8 and 9 January 2025. The applications sought a discharge of the orders made by the Registrar pursuant to r 11.5 of the Federal Court (Corporations) Rules 2000 (Cth) (FCCR) and further or in the alternative, a review pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 3.11 of the FCR of the decision by the Registrar to issue the examination summonses and the orders for production.

5 Pursuant to r 11.5 of the FCCR, the primary judge set aside orders made by the Registrar for material non-disclosures by the applicant to the Registrar. Although considered not necessary given her Honour’s conclusion with respect to the r 11.5 applications, the primary judge also conducted a review of the decision of the Registrar to issue the examination summonses and concluded that she would exercise her discretion “to decline the examination summonses under s 596B” issued to John Kevin Haley, Brett Garland, Phillip Byrant and Tristan Garthe (HWLE examinees) and Philip Anthony Feitelson, Lois May Bullen and Glen Walter Willliams (CBP examinees) (PJ [409]; [413]; [415]). The primary judge set aside related orders for production because the s 596B examination summonses had been set aside and, with respect to the s 596A examination summonses, because the orders for production sought documents that were not relevant or were otherwise uncertain, vague and thereby oppressive (PJ [464]-[467], [472], [479]-[483]).

6 The applicant’s principal contention is that the primary judge erred in failing to conduct and determine the interlocutory applications as de novo hearings of the exercise by the Registrar as required by s 35A of the FCA Act.

7 For the reasons that follow, I am not satisfied that the applicant has established that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court or that substantial injustice would result to the applicant if leave were refused, supposing the decision of the primary judge was wrong.

B.     Proposed grounds of appeal

8 The applicant seeks to raise the following proposed grounds of appeal:

1.    In respect of Orders 2, 3, 4 and 5 of the Orders made by the primary judge on 22 December 2025 (Orders), the primary judge erred in failing to conduct and determine the interlocutory applications by the Respondents identified in those Orders, as de novo rehearings of the exercise of the Court’s powers by a Registrar, as required by section 35A of the Federal Court of Australia Act 1976.

1.     In respect of Orders 2, 3, 4 and 5 of the Orders, the primary judge erred in law by treating the material non‑disclosure found to have occurred before the Registrar as requiring setting aside of the Registrar’s orders and the discharge of the summonses issued by the Registrar under s596B of the Corporations Act 2001 (Cth) (Act),notwithstanding that the matters found not to have been disclosed before the Registrar were before her Honour.

2.     In respect to Orders 2, 3, 4 and 5 of the Orders, the primary judge erred in law by misdirecting herself as to the correct treatment of material non-disclosure on the ex parte application made by the Appellant by:

3.1     treating each aspect of non‑disclosure found as infecting all summonses issued under s 596B of the Act, without individual analysis of the materiality of such nondisclosure to the decision to issue each such summons;

3.2     failing to take into account the factual context in which the summonses under s 596B of the Act were issued to the Respondents (other than the Sixth and Seventh Respondents) being that:

(i)     the Appellant’s Initiating Application sought the issue of such summonses to those Respondents under s 596A of the Act;

(ii)     the Registrar determined in the course of dealing with the application to issue the summonses under s596B of the Act, without giving the Appellant notice that her obligation to disclose would thereby apply to a broader range of matters, and without giving the Appellant a reasonable opportunity to file material and make submissions to address that broader range of matters.

1.     In respect of Orders 2, 3, 4 and 5 of the Orders, to the extent that the primary judge did (starting at paragraph [400] of her reasons for decision) decide the relevant interlocutory applications as a de novo rehearing of the exercise of the Court’s powers by the Registrar, the primary judge erred in the exercise of her discretion under section 596B of the Act in pre-determining of the likely scope and result of the proposed examinations by finding that there was no practical utility that could be achieved by the examinations and such examinations could not be sufficiently justified, in circumstances where it was found that the conditions stated in sections 596B(1)(a) and 596B(1)(b) were met in respect of each relevant Respondent.

2.     The primary judge erred in making Direction 1 recorded in the Orders under s 596F of the Act because that direction wrongly restricted the scope of the proposed examinations in circumstances where:

5.1     it was not clear that no matter considered and determined in Moreton Resources Ltd (in liq) & Ors v First Samuel Ltd & Ors [2020] QSC 339 or Elks v Melgear Pty Ltd & Ors [2023] QSC 150 could form a proper line of enquiry for the Appellant in the examinations; and

5.2     any improper questions asked by the Appellant concerning matters the subject of direction 1 could adequately be dealt with by the Registrar conducting the examinations.

9 The applicant seeks orders in her draft notice of appeal allowing the appeal, setting aside the orders of the primary judge dismissing the examination summonses and the orders for production, dismissing the interlocutory applications, and for costs.

C.     The reasoning of the primary judge

C.1.     The applicant failed to disclose material information

10 The primary judge first addressed the applications for the setting aside of the examination summonses on the basis that there had been a material non-disclosure by the applicant (PJ [97]-[394]).

11 The primary judge found that the orders for the discretionary examinations pursuant to s 596B of the Act should be set aside for material non-disclosure (PJ at [394]). Her Honour was satisfied that (a) the hearings before the Registrar leading to the issue of the summonses for examination were conducted on an ex parte basis (PJ [130]), (b) the applicant failed to disclose material facts to the Registrar (PJ [236], [336]), (c) generally an ex parte order obtained by a party where there has been a material non-disclosure “will usually” fail although there remains a discretion in an exceptional case for the order to remain, citing the observations of Mahoney AP, with whom Clarke JA agreed, in Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678, and Gageler J in Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3 at [14]-15, (d) the applicant deliberately failed to disclose material facts to the Registrar (PJ [354]-[392]), and (e) there were no exceptional circumstances present in this case that justified the exercise of the discretion not to set aside the orders for deliberate material non-disclosure (PJ [393]-[394]).

12 Her Honour concluded that the examination summonses issued to the HWLE examinees and the CBP examinees under s 596B of the Act should be set aside or discharged for material non-disclosure (PJ at [398]).

C.2.     The discretion to issue the summonses on review was not exercised

13 The primary judge next addressed the applications for a de novo review pursuant to s 35A(5) of the FCA Act of the orders made by the Registrar for the issue of the examination summonses (PJ [399]-[415]).

14 The primary judge exercised her discretion pursuant to s 596B of the Act to decline the examination summonses issued against each of the HWLE examinees and the CBP examinees. Her Honour concluded that given the date on which each of Mr Bryant, Mr Garland, Mr Haley, Mr Garthe and Mr Feitelsen variously ceased to be directors of Moreton Resources or MRV and the relevant circumstances and events, it was difficult to understand how the proposed examinations could be of practical utility or sufficiently justified (PJ [405]-[413]). Her Honour was equally satisfied that it was difficult to understand how the examinations of Mr Williams and Ms Bullen (who at the relevant time were solicitors acting for the receivers of Moreton Resources and MRV, and for three other persons or entities) could be of any practical utility or were sufficiently justified given the relevant circumstances and events (PJ [414]-[415]).

C.3.     Abuse of process found for the s 596B but not s 596A examinations summonses

15 The primary judge then addressed the additional contention advanced by the examinees that the material non-disclosure by the applicant constituted an abuse of process (PJ [416]-[461]). Her Honour accepted that the matters that the applicant sought to raise with the examinees the subject of the compulsory s 596A examinations summonses included matters that had been considered and determined but concluded that those summonses were not an abuse of process as they were an information gathering process subject to the control of the Court. In that regard her Honour stated that she would make a direction pursuant to s 596F(1)(a) of the Act that the matters to be enquired into in the s 596A examinations will not include any matter considered in the judgments delivered in the Queensland Supreme Court in Moreton Resources Ltd (in liq) & Ors v First Samuel Ltd & Ors [2020] QSC 339 (Flanagan J) and Elks v Melgear Pty Ltd & Ors [2023] QSC 150 (Cooper J) (PJ at [459], [461]).

16 Her Honour otherwise concluded that if it were necessary, she would have concluded that the s 596B examination summonses were an abuse of process by reason of the applicant’s material non-disclosures on an ex parte application given it brings the administration of justice into disrepute (PJ [460]).

C.4.     Orders for production are set aside

17 Finally, the primary judge addressed the contentions that the orders for production addressed to the examinees should be set aside (PJ [462]-[482]).

18 The primary judge found that the orders for production addressed to each of the HWLE examinees and the CBP examinees must necessarily be set aside because the documents could not be required for the exercise of the power to conduct the examinations as they will not be proceeding (PJ [464]-[465]). Relatedly, her Honour found that the orders for production addressed to the proper officer of CBP must be set aside as it must necessarily relate to the examinations of either or both of Mr Williams and Ms Bullen that would not be proceeding (PJ [466]). In addition, her Honour set aside the orders for production addressed to the proper officer of Melgear Pty Limited as those orders must necessarily relate to the examination of Mr Feitelson that also would not be proceeding (PJ [467]).

19 As for the orders for production addressed to the s 596A examinees, the primary judge concluded (a) the personal documents sought from them could not stand because no cause of action was identified against any s 596A examinee, and (b) the definitions of “Documents” and “Financial Records” in the orders for production were “vague, excessive and imprecise”. In view of those definitions, the absence of any alternative drafting to capture documents relevant to the s 596A examinations and the lack of a procedure for dealing with privileged communications, her Honour was satisfied that the orders for production should be set aside on the basis they were “uncertain, vague and thereby oppressive” (PJ [474]-[480]). Relatedly, her Honour also concluded that the orders for production addressed to each of Deloitte and Cor Cordis should also be set aside because each sought “All Documents” and used the same definition of “Documents” and were thus also uncertain, vague and thereby oppressive (PJ [481]).

20 Her Honour observed, however, that there may be a need for “certain relevant documents” for the purposes of the s 596A examinations and noted that she would hear further from the parties as to an appropriate form of orders for production from each of the s 596A examinees and the proper officers of Deloitte and Cor Cordis (PJ [482]).

D.     Relevant legal principles

21 The decision of the primary judge was interlocutory in nature and therefore, the applicants require leave to appeal: s 24(1A) of the FCA Act.

22 It is well established that two criteria need to be addressed in an application for leave to appeal from an interlocutory judgment. First, whether the judgment was attended with sufficient doubt to warrant it being reconsidered by the Full Court, and second, whether substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 2.

23 It is not sufficient for the purposes of an appeal from a discretionary judgment for this Court to conclude that it would have exercised the relevant discretion differently had it been in the position of the primary judge: House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). As Dixon, Evatt and McTiernan JJ stated in House v The King at 505:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated.

24 There is a strong presumption in favour of the correctness of the decision appealed from in a discretionary judgment, and the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at 39 .

25 A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, giving weight to extraneous or irrelevant matters, failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Even if the specific nature of the error may not be discoverable, the result may be so unreasonable or plainly unjust that an appellate court may infer that there has been a failure to exercise properly the discretion which the law reposes in the court of first instance: Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 (Kitto J).

E.     Was there sufficient doubt to warrant appellate consideration?

E.1.     Material non-disclosure – proposed grounds 1 and 2

E.1.1.     The challenge to the dismissal for material non-disclosure

26 Proposed ground 1 is sought to be advanced on the basis that the review de novo procedure provided in s 35A of the FCA Act must necessarily apply to any application to discharge the summonses for examination and production because they were issued by a registrar. On that basis, the applicant and the interested party contend that the primary judge erred by considering the application to set aside the summonses for examination and orders for production independently of and before conducting a review by way of a hearing de novo pursuant to the constitutional imperative in s 35A.

27 Significantly, the applicant does not seek to challenge in the draft appeal grounds any of the express material non-disclosure findings made by the primary judge. In effect, the applicant, although not the interested party, accepts that there was material non-disclosure but contends that, a reviewing judge may “properly take such conduct into account” in the context of the applicant’s credit or in the exercise of the primary judge’s discretion in a de novo consideration of the decision of the Registrar to issue the summonses for examination and orders for production sought in the originating application filed by the applicant.

E.1.2.     Material non-disclosure challenge could proceed independently of de novo review

28 It is well established that the exercise of federal judicial power in Australia (a) may only be exercised by judges of federal courts or courts exercising federal jurisdiction, (b) federal judicial power may be delegated by a court to registrars if the power to be exercised by the registrar is subject to review by a judge of the court, and (c) the review is not directed at error in the decision of the registrar but rather is a hearing afresh on the evidence and law before the court at the time of the hearing de novo: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [1]-[3], 17.

29 Those fundamental principles apply to any review by a court of a decision of a registrar.

30 Those principles, however, cannot sensibly apply to the material non-disclosure by the applicant to the Registrar. I accept that the orders sought in the interlocutory applications pursuant to r 11.5 seek to set aside a decision made by the Registrar but they do not seek to challenge in any meaningful sense the manner in which the Registrar made the decision to issue the examination summonses and orders for production. On no view was the Registrar aware of the material non-disclosure.

31 The existence of the material non-disclosure only emerged when the examinees obtained access to the confidential affidavits relied on by the applicant in the hearing before the Registrar well after the Registrar had made the orders sought in the originating application.

32 The approach to be taken to the resolution of a material non-disclosure in orders for examination obtained before a registrar was considered by Jagot J in Trevor, in the matter of Bell Group NV (in liq) (No 2) (2017) 122 ACSR 418; [2017] FCA 927. After observing that a person could apply under r 11.5 of the FCCR to set aside an examination summons, her Honour relevantly stated at [20]-[22]:

There is no debate between the parties about the nature of a review under s 35A(5) of the Court Act. Under s 35A(1) certain powers of the Court may be exercised by a Registrar. By s 35A(1)(h) these include the power to make an order for the issue an examination summons. Such an order involves an exercise of judicial power (Palmer v Ayres [2017] HCA 5; (2017) 91 ALJR 325 at [31]). It is a necessary Constitutional concomitant of this that there is a full right of review by a Judge of this Court, for which s 35A(5) of the Court Act provides. As explained by Kenny J in Deputy Commissioner of Taxation v Australian Securities and Investments Commission [2013] FCA 623; (2013) 304 ALR 319 the right of review under s 35A(5) is “by way of a hearing de novo in the sense that the parties may adduce fresh evidence as of right”, “is a complete rehearing; and the judge is not fettered by the Registrar’s decision” (at [36]), so that the “court must determine the facts on the evidence that is adduced at the hearing before it, whether or not that evidence, and the facts to which they relate, were in existence at the time the Registrar made the decision under review” (at [38]).

There was some debate about the interaction between the review under s 35A(5) and the fact that an application for the issue of a summons for examination may be made ex parte, the orthodox position being that the proposed examinee has no right to be heard. It seems to me that the debate, insofar as it arose, is answered by the approach summarised in In the matter of Mendarma Pty Ltd (in liq) [2006] NSWSC 1306; (2006) 24 ACLC 1611 in which White J, having found that there had been material non-disclosure to the Registrar, said at [58]:

The matters may have affected that decision. It does not follow that the summonses should necessarily be set aside. However, as Lander J said in Re Southern Equities Corporation, in the passage I have quoted [Re Southern Equities Corporation (1997) 25 ACSR 394], the Court regards a breach of the obligation to make full disclosure seriously. There is no basis to infer in this case that the non-disclosure came about through an error of judgment as to the materiality of the matters not disclosed. Nor am I in a position to decide whether, had those matters been disclosed, the decision would have been the same. Whether, on a fresh application, either the Registrar or a Judge would make an order for the issue of a summons could well depend upon the further enquiries to which I have referred. Of course, the discharge of the examination summonses is not a bar to the liquidators’ applying afresh on an affidavit which makes full disclosure of all material matters.

In other words, if there has been a material non-disclosure, and having regard to the facts not disclosed and the circumstances of the non-disclosure, and if the Court on review considers that an examination summons should be set aside, then the summons is to be set aside. The Court does not attempt to re-exercise the discretion on what it considers to be a proper basis. If a properly based application is open to be made for the issue of another summons, then such an application may be made. As such, I do not accept the contention for Mr Trevor that, if all of his arguments are rejected, then there was nevertheless sufficient material before the Registrar to properly found the order for issue of the summonses so that, as an exercise of discretion, the summonses ought not to be set aside. This would involve an attempted re-exercise of the discretion when it cannot be known what the Registrar would have done.

(Emphasis added.)

33 The applicant contended that her Honour’s reasoning at [22] was incorrect and should not be followed on the basis that her Honour’s reliance on the observations of White J in Re Mendarma Pty Ltd (in liq) (2006) 24 ACLC 1611; [2006] NSWSC 1306 at [58] was misplaced given, under the UCPR, the powers exercised by registrars of the Supreme Court of New South Wales were subject to a “rehearing” by a judge not a “hearing de novo ”. I accept that there is a distinction between a rehearing and a hearing de novo, but I do not accept that the distinction suggests, let alone establishes, that Jagot J erred in relying on the statements by White J in Re Mendarma at [58]. Whether by way of a rehearing or a hearing de novo, the Court is not seeking to re-exercise a discretion on what it considers to be a proper basis but rather determining whether there has been a material non-disclosure and if so, should the summonses for examination be set aside.

34 The primary judge applied the statements of principle by Jagot J in Bell Group at [20]-[22] by first addressing the applications under r 11.5 to set aside the examination summonses and orders for production independently of any review de novo pursuant to s 35A(5) of the FCA Act. The primary judge would be expected to follow the decision of Jagot J in Bell Group unless her Honour considered there were “compelling reasons” to the contrary, which I note is the more preferable formulation of the approach compared with whether the earlier decision is considered “plainly wrong”: see Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd (No 3) [2025] FCA 1179; (2025) 187 IPR 348 at 147; David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd (2024) 114 NSWLR 81; [2024] NSWCA 83 at 140.

35 With respect, the reasoning of Jagot J was unexceptional, notwithstanding the constitutional imperative that decisions of registrars must be subject to de novo review by a judge. Any distinction between a rehearing and a hearing de novo is not the relevant issue. Rather, the relevant issue is that a de novo review of a decision made by a registrar is a hearing afresh of a decision made by the registrar, such as to issue summonses for examination or make orders for production of documents. An application to set aside a decision of a registrar for material non-disclosure falls outside that procedure as necessarily the material non-disclosure is a matter that was not considered by the registrar as the material alleged to constitute the material non-disclosure would not have been before the registrar. In that sense, there was no relevant decision by the Registrar with respect to the material non-disclosure in this case that could be the subject of a de novo review. The Registrar made no decision on the relevance or significance of the material that had not been disclosed.

36 Proposed Ground 1 does not identify any potential error.

E.1.3.     The parties conducted the case differently below

37 Moreover, and in any event, the applications before the primary judge proceeded on the basis that the application to discharge the examination summonses was distinct from the application for a de novo review pursuant to s 35A(5) of the FCA Act, the focus of the applicant’s submissions was on the former not the latter issue, and there was no contention by the applicant that the de novo review pursuant to s 35A(5) had to be determined first or that material non-disclosure could only be considered as part of the de novo review of the Registrar’s decision.

38 An appeal court may entertain an alleged error of law, which in this case is the contention that the primary judge erred by determining the applications to set aside the examination summonses for material non-disclosure prior to and independently of the review of the Registrar’s decision to issue the examination summonses and orders for production pursuant to s 35A(5) of the FCA Act.

39 Such a new contention may only be advanced, however, where the appeal court is satisfied that it is in the interests of justice and that allowing a party to argue a new point would not work an injustice on the other party: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 79 citing with approval the approach stated by the Full Court in Summers v Repatriation Commission [2015] FCAFC 36 at [93]-95.

40 As explained at ] above, the applicant contends that the material non-disclosure before the Registrar could have been taken into account by the primary judge, at least as to credit or in the exercise of the primary judge’s discretion in a de novo consideration of the Registrar’s decision.

41 The applicant seeks to rely on the failure of the primary judge to refer to the material non-disclosures in her Honour’s s 35A(5) of the FCA Act de novo review of the Registrar’s decision to issue the examination summonses and the orders for production. It may well have been the case, as submitted by the CBP parties, that that failure was the consequence of the applicant not objecting to, and otherwise acquiescing to, the manner in which the case was conducted before the primary judge, namely where the issue of material non-disclosure was advanced prior to and independently of the de novo review of the Registrar’s decision.

42 The CBP parties submit that, had the applicant submitted before the primary judge that the review under s 35A(5) of the FCA Act had to be decided first, then the CBP parties would have:

… submitted in the clearest of terms that the intentional non-disclosure of material facts was a reason why the court should not exercise its discretion to issue summonses under section 596B.

43 The JWS parties submit that a judge in conducting a de novo hearing is entitled to take into account a material non-disclosure before a registrar.

44 It is not readily apparent how a material non-disclosure before the Registrar could be relevant to an exercise of discretion considered afresh by a judge given the de novo review would proceed with the information before the judge that would necessarily include the material the subject of the alleged material non-disclosure. In any event, given the manner in which the proceeding was conducted before the primary judge, the relevance of the material non-disclosure to the de novo review was not explored nor addressed by the parties.

45 For these reasons, if I was otherwise mistaken in finding that proposed ground did not disclose any potential error, it would not be in the interests of justice to permit the applicant to advance propose ground 1 because the applicant is now seeking to raise an issue that the examinees were not given the opportunity to address given the manner in which the applicant conducted the matter before the primary judge.

E.1.4.     Material non-disclosure did not require ex parte orders to be set aside

46 Contrary to the contention sought to be advanced in proposed ground 2, the primary judge recognised that the material non-disclosure that her Honour had found to have occurred before the Registrar did not require the discharge of the summonses for examination issued under s 596B of the Act. As her Honour concluded at PJ [393]-[394]:

There has been material non-disclosure by the Plaintiff, in so far as it relates to the s 596B examination summons. I accept that the better view of the authorities, including Edison, is that upon finding material non-disclosure a discretion is enlivened. Generally, or ordinarily where there has been deliberate material non-disclosure the orders resulting from which will be set aside. There are no exceptional circumstances or matters which puts this matter as one of those rare cases that would mean the discretion should be exercised to maintain the order so obtained. There is nothing in the circumstances of this case which can properly be described as exceptional in relation to the obtaining of the ex parte orders (in the sense described in Edison).

It is ordinarily sufficient that in circumstances of material non-disclosure, the orders so obtained should be set aside or discharge. In relation to the discretionary examination summons, that is appropriate in the circumstances of this case.

47 A statement that a material non-disclosure might be “ordinarily sufficient” to lead to an order being set aside or discharged does not carry with it any implication that a material non-disclosure required orders to be set aside. Proposed ground 2 does not identify any potential error.

E.2.     Challenges to exercise of discretion – proposed grounds 3 to 5

E.2.1.     There was no misdirection as to correct treatment for material non-disclosure

48 The applicant contends in proposed ground 3 that the primary judge misdirected herself as to the correct treatment for material non-disclosure by treating the non-disclosures as infecting all s 596B summonses without undertaking any individual assessment of materiality for each summons and failing to take into account the factual context in which the s 596B summonses were issued. The factual context is alleged to be that the applicant initially sought the issue of those summonses pursuant to s 596A but the Registrar determined in the course of dealing with the application to issue the summonses under s 596B without giving the applicant notice that her obligation of disclosure would extend to a broader range of matters and without giving her a reasonable opportunity to file material and make submission to address the broader range of matters.

49 In her reply submissions, the applicant advised that she no longer pressed proposed ground 3 as a standalone ground of appeal. Rather, she contends that, if the material non-disclosures were to be taken into account in the exercise of discretion under s 596B, then the alleged factual context should have been taken into account by the primary judge in the de novo exercise of discretion.

50 There was no obligation on the primary judge, however, to take into account the alleged factual context in circumstances where the primary judge had found that the Registrar had notified the applicant of an intention to issue the s 596B summonses on 14 November 2024 but the orders were not made until 8 January 2025 following a further hearing before the Registrar on 26 November 2024 (PJ at [132], [134], [136]). It is telling, as found by the primary judge at PJ [138], that the Registrar provided the applicant with the following explanation at the hearing on 26 November 2024:

THE REGISTRAR: So let’s deal with the balance of the issues then, which is where things are at with the summonses and the orders for production. So I’ve given to my legal case manager, you know, instructions to give a provisional indication of where I landed regarding the summonses themselves. So ultimately where I landed there was that only 596A summonses were issued to Mr Joyner, Mr Kirk, Mr Orr and Mr 15 Sparks [sic], and the balance would be 596B summonses. Those summonses haven’t yet issued, but what I propose to do is to speak through some amendments to the summonses themselves, and I’m going to speak to the orders for production. …

(emphasis added by the primary judge)

51 The applicant was given every opportunity to make further submissions or disclosures in response to the proposed issue of summonses pursuant to s 596B. The Registrar was under no obligation to explain to the applicant the specific scope of the obligation to disclose material matters to the Court in an ex parte application. In any event, any alleged failure by the primary judge to take into account the alleged factual context could not give rise to any House v The King error.

E.2.2.     No error in considering practical utility and sufficient justification

52 In proposed ground 4, the applicant contends that to the extent that the primary judge might have determined the interlocutory applications in a de novo hearing, her Honour erred in the exercise of her discretion under s 596B of the Act by “pre-determining of the likely scope and result of the proposed examinations” by finding that they lacked practical utility and could not be sufficiently justified.

53 The applicant submits that the primary judge erred in law in treating the applicant as being under an obligation to establish that the s 596B examinations would have some practical utility by reason of her Honour’s findings at PJ [403], [406], [407], [413] and [415] that it is “difficult to understand how such examinations could have practical utility” or be “sufficiently justified”. The applicant submits, in reliance on the statements of principle in Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244; [2017] FCAFC 91 and Pitman v Park, in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887, that the primary judge has impermissibly reversed the onus in considering whether the examination summonses were justified, or had practical utility.

54 In Kimberley Diamonds, the Full Court relevantly stated at [21], [24] and 112;

Second, and flowing from the first point, it is unnecessary for the eligible applicant for a s 596A summons to establish any particular reason for seeking the summons; or demonstrate that the proposed examination would have practical utility; or that the examination would or would be likely to achieve any particular result or outcome; or that the examination would be in any sense desirable or efficacious. While r 11.3(3) of the Corporations Rules (though not s 596C of the Corporations Act) provides that the applicant for a s 596A summons must file an affidavit in support of the application, the affidavit need only address the two express criteria in s 596A.

…

Fourth, in the case of a s 596B summons, even if the Court is satisfied that the two criteria have been made out, the Court is not required to issue the summons. It retains a discretion whether or not to do so. The Court could, in such circumstances, decline to exercise the discretion if it was not satisfied, for example, that the proposed examination was sufficiently justified, or would have any practical utility.

…

Third, it would appear from the primary judge’s reasoning that, in considering whether the examination summons was justified, or had practical utility, her Honour reversed the onus of proof. Her Honour effectively required KDL to justify the practical utility of examining Mr Arnautovic, and to do so by pointing to evidence that demonstrated that there was a “reason to believe”, or that there was a “reasonable prospect”, that there was an available action against Mr Arnautovic.

55 In Pitman, Derrington J relevantly stated at [43]:

Also relevant to this issue is the decision of the Full Court in Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244 (Kimberley Diamonds) (Foster, Wigney and Markovic JJ). Although that decision considered the application of s 596A, many of the Court’s observations are equally applicable to s 596B including; that the broad power ought not be read down by implication or imposing limitations which do not exist in the express words; there is no requirement that, prior to exercising its power, the Court needs to be satisfied that the potential results of the examination justify it being undertaken; and there is no requirement for the liquidator to establish that the examination will ultimately have some practical utility or that it will result in the revelation of some viable claim against an examinee or a third party. Whilst acknowledging that the primary purpose of public examinations is to gather information and that there is no requirement that the information intended to be gathered is directed to legal proceedings, the Court accepted that the power is not open ended and it must be directed to the ascertainment of the company’s examinable affairs. Their Honours said (at 264 [104]):

The position may be different if the examinee is able to demonstrate that the controversy, or the perceived controversy, or the unanswered questions, do not genuinely relate to or arise from the examinable affairs of the company, or are otherwise speculative, far-fetched or misconceived. In such circumstances, it could well be concluded that the examination was an abuse of process. The use of the examination process for such a purpose could rightly be found to be vexatious or oppressive and to bring the administration of justice into disrepute. The “heavy” onus of demonstrating this rests on the party seeking to stay the summons. …

56 Neither Kimberley Diamonds nor Pitman provides any support for the proposition that it is not permissible for the Court to take into account practical utility or sufficient justification in the exercise of a de novo discretion whether to issue an examination summons under s 596B of the Act. Rather, both authorities make plain that an applicant does not bear any onus to establish practical utility or sufficiency. Further, Kimberley Diamonds makes plain at [24] that the Court can decline to issue an examination summons under s 596B “if it was not satisfied, for example, that the proposed examination was sufficiently justified, or would have any practical utility”.

57 A finding in the exercise of discretion that it is “difficult to understand how such examinations could have practical utility” or “sufficiently justified” does not give rise, in itself, to any reversal of an onus of proof.

58 There is no merit in proposed ground 4.

E.2.3.     No discernible error in direction to limit scope of examinations

59 The applicant contends in proposed ground 5 that the primary judge erred in making a direction limiting the scope of the s 596A examinations. The applicant contends that it was not clear why no matter considered and determined in the 2020 Proceeding and the 2023 Proceeding could form a proper line of enquiry as opposed to reopening matters already decided, and any improper questions could be adequately dealt with by the registrar conducting the examinations.

60 The applicant accepts that the primary judge had the power to make the direction but submits that there was “no justification in doing so in the present case”. The applicant seeks to rely on the following observations by the Full Court in Jane v Secatore (Liquidator), in the matter of Last Lap Pty Ltd (in liq) [2021] FCAFC 108 at 14:

It is not the function of the court issuing the summons to determine the scope of the examinable affairs of the corporation. That takes place within the context of the examination, the very purpose of which is to enable an eligible applicant to gather information to assist the eligible applicant in the administration of the corporation and to identify the corporation’s assets and liabilities, amongst other purposes: Wainter Pty Ltd, in the matter of New Tel Limited (in liq) ACN 009 068 955 (2005) 145 FCR 176; [2005] FCAFC 114 at [252]. The purpose of the examination is not to be pre-empted by the court determining for itself, in an application for the issue of a summons under s 596B, the very matter to be the subject of the examination, where the eligible applicant is able to demonstrate that the subject matter relates to, or arises, from the examinable affairs of the company.

61 In context, the Full Court in Jane v Secatore was emphasising that the Court should not seek to pre-determine or pre-empt the scope of the examinable affairs of a corporation where an eligible applicant is able to demonstrate that subject matter relates to, or arises, from the examinable affairs of the corporation. It does not necessarily follow from these statements of principle that the limitation imposed by the primary judge on the scope of the s 596A examinations in order to prevent them being an instrument of oppression or injustice, as the primary judge had concluded at PJ [459], is an impermissible attempt by the Court to “determine the scope of the examinable affairs of the company”.

62 The applicant contends that it was unreasonable for the primary judge to impose “such a wide curtailment of the examination on the implied basis that any inquiry as to matters considered and determined in the 2020 Judgment or the 2023 Judgment could only be to re-open matters that have already been decided (citing the PJ at [458]).

63 The insuperable difficulty with this proposed ground of appeal is that no House v The King error is discernible. The direction was made in the exercise of a discretion, it could not be and was not suggested to be beyond power, and it was limited to matters that had been both “considered and determined” in the 2020 Proceeding and the 2023 Proceeding in order to prevent the examinations being “an instrument of oppression or injustice”.

E.3.     Conclusion

64 For the foregoing reasons, I am not satisfied that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration by the Full Court.

F.     Was there any substantial injustice to the applicant?

F.1.     The impact on any subsequent application does not rise above conjecture

65 The applicant accepts that it was legally open for her to re-apply to a registrar for the re-issue of the s 596B examination summonses but submits that as “a matter of practicality” that it would be very unlikely that they would be re-issued. She submits that the primary judge, in addition to setting aside the summonses for material non-disclosure, made findings as to why in the exercise of discretion she would decline to issue the summonses and submits that a registrar would be “very unlikely” to depart from given the primary judge “apparently considering substantially the same evidence”.

66 I am not satisfied that the possibility that a registrar might be influenced by findings that the primary judge made in exercising a de novo discretion whether to issue the s 596B examination summonses would cause any substantial injustice to the applicant.

67 In any renewed application for a s 596B examination summons, a registrar would have to consider the material advanced by the applicant in support of the request. Given the findings made by the primary judge in the primary judgment and the subsequent effluxion of time, it is most unlikely that the material will be limited to the material relied on before the Registrar or subsequently relied upon before the primary judge. The nature and extent of that additional material cannot rise above conjecture and nor could a registrar’s assessment of the significance of that material rise above conjecture. Mere conjecture is insufficient to establish substantial prejudice.

F.2.     There is no material prejudice to the challenge to the applicant’s authorisation

68 Further, the applicant submits that there is a very real possibility that if leave to appeal is not granted, the Australian Securities and Investments Commission (ASIC) may revoke the applicant’s status as an eligible person to apply for examination summonses.

69 In late December 2025, Colin Biggers & Paisley provided ASIC with a copy of the primary judgment and invited ASIC to revoke its authorisation of the applicant on the basis of the material non-disclosures that the primary judge had found were made by the applicant to the Registrar and foreshadowed that they were giving “serious consideration to making an application seeking judicial review of ASIC’s decision to authorise [the applicant] and Mr Elks as eligible applicants”.

70 On 8 January 2025, ASIC wrote to Colin Biggers & Paisley advising them that at as a matter of procedural fairness, it considered that it was necessary to provide the applicant and Mr Elks with an opportunity to respond to any proposal to revoke the authorisations, this would take approximately three weeks, and any commencement of judicial review proceedings prior to this being undertaken would be premature.

71 On 29 January 2025, ASIC wrote to Colin Biggers & Paisley informing them that it was now aware of the application for leave to appeal the primary judgment and it would await the outcome of the application for leave to appeal and any subsequent appeal prior to “further considering the status of the Authorisations”. ASIC confirmed that it remained of the view that any commencement of judicial review proceedings prior to its decision on the status of the authorisations would be premature.

72 Given the request for revocation of the authorisations was made on the basis of the material non-disclosure findings made by the primary judge that are not the subject of any of the proposed grounds, it is not apparent how the determination of the application for leave to appeal could materially impact on ASIC’s decision to consider the status of the authorisation granted to the applicant. Further, and in any event, ASIC’s principal concern, as advanced in their 8 and 29 January 2025 letters, is that the commencement of judicial review proceedings would be premature prior to it making a decision on the status of the authorisations.

73 I do not accept that any decision not to grant leave to appeal will materially impact on any decision by ASIC to revoke the applicant’s status as an eligible person to apply for examination summonses.

G.     The application does not raise any matter of general importance

74 The applicant contends that whether this Court should disapprove the “importation” by Jagot J in Bell Group of the New South Wales approach into a de novo review pursuant to s 35A of the FCA Act is a matter “of general importance beyond the concerns of the parties”.

75 As submitted by the HWLE parties, I do not accept that the application raised any matter of public or general importance. As explained at ] above, the primary judge would be expected to follow the decision of Jagot J in Bell Group unless her Honour considered there were compelling reasons to the contrary.

76 I am satisfied that there were no compelling reasons to the contrary. As I explain at ] above, the reasoning of Jagot J was unexceptional, notwithstanding the constitutional imperative that decisions of registrars must be subject to de novo review by a judge.

H.     Disposition

77 The application for leave to appeal is to be dismissed and the applicant is to pay the costs of the respondents.

| I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. |
Associate:

Dated: 17 April 2026

SCHEDULE OF PARTIES

| | QUD 42 of 2026 |
| Respondents | |
| Fourth Respondent: | PHILIP ANTHONY FEITELSON |
| Fifth Respondent: | MELGEAR PTY LIMITED ACN 056 330 646 |
| Sixth Respondent: | GLEN WALTER WILLIAMS |
| Seventh Respondent: | LOIS MAY BULLEN |
| Eighth Respondent: | COLIN BIGGERS & PAISLEY PTY LIMITED ACN 166 080 682 |
| Ninth Respondent: | BRETT GARLAND |
| Tenth Respondent: | TRISTAN GARTHE |
| Eleventh Respondent: | PHILIP BRYANT |
| Twelfth Respondent: | JOHN KEVIN HALEY |
| Thirteenth Respondent: | DAVID MICHAEL ORR |
| Fourteenth Respondent: | GRANT DENE SPARKS |
| Fifteenth Respondent: | DELOITTE SRT PTY LTD ACN 611 749 841 |
| Interested Person: | ALEXANDER JASON ELKS |