Gothard v Fell; in the matter of Allco Financial Group Ltd
(receivers and managers appointed) (in liq) (2012) 88 ACSR
On 15 May 2012, Jacobson J of the Federal Court of Australia
allowed an application by Receivers to be released from
confidentiality undertakings so that use could be made of
Australian Securities and Investments Commission
(ASIC) examination transcripts.
Gordon Fell and David Coe (the first and second respondents)
were both former directors of Allco Finance Group Limited
(Allco), a listed public company. In October 2007
Allco purchased, from companies associated with Fell and Coe,
shares in Rubicon Holdings (Aust) Ltd (Rubicon)
for $64 million and shares in Allco (Rubicon
Deal). Allco collapsed in late 2008. The ASIC conducted an
investigation into Allco's collapse, during which it examined
Fell and Coe (among others) and obtained documents under its powers
in Part 3 of the ASIC Act 2001 (Cth) (Act). Fell and Coe were both
examined at length about the Rubicon Deal under section 19 of the
During the course of Allco's receivership the Receivers
became aware of the existence of the section 19 examination
transcripts (Transcripts) and subpoenaed ASIC to
produce them. ASIC produced the Transcripts subject to as express
confidentiality undertaking executed by the Receivers that they
would not disclose the confidential information or documents except
as required or permitted by an order of the Court, and that they
would not use the confidential information or documents
"for any purpose other than for the conduct of the
The Receivers sought to be released from the Undertakings so
that they could consider the material in the course of the
receivership of Allco and to pursue proceedings against Fell and/or
Coe for contraventions of their duties as directors of Allco in
respect of the Rubicon Deal.
In order to be released from an undertaking the person seeking
to be released must show "special
circumstances". The "special
circumstances" test, as stated by Wilcox J in
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd
(1992) 38 FCR 217 and accepted by the Full Court in Liberty
Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
requires a party to show good reason why documents produced or
information obtained in one piece of litigation should be used for
the advantage of a party in another piece of litigation or for
other non-litigious purposes. Essentially, the exercise of the
discretion is a balancing act taking into account the nature of the
material produced and the policy underlying the undertaking, with a
view to determining whether the needs of justice are better served
by releasing or maintaining the undertaking.
The Receivers submitted that using the Transcripts and document
bundles to determine whether to pursue proceedings against Fell and
Coe was consistent with the purpose for which the examinations were
conducted, and that it was contemplated that the Receivers might
use the documents for these purposes. The Court accepted that the
"special circumstances" test was satisfied and
allowed the Receivers to be released from the Undertakings.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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