When you’re conducting what might be the largest and most complex public examination ever run by Australian liquidators, maintaining the process without inadvertently creating additional complexity can be challenging, as Pitcher Partners’ Andrew Yeo and Gess Rambaldi have discovered after being dragged into a potential defamation action between one of the examinees and Fairfax Media’s The Age newspaper.
On August 28 Tim Batchelor, a locksmith from rural Victoria was examined.
Batchelor is one of 45 individuals served with summons to attend for examination as part of Pitcher’s ATO-funded investigation into a $100 million tax avoidance and phoenix facilitation racket allegedly masterminded by Melbourne man Phil Whiteman
During his examination Batchelor made various assertions under questioning about Melbourne lawyer Jonathan Kenny.
We won’t be repeating what was reported by The Age on the evening of August 28 but as Kenny told Insolvency News Online (INO) yesterday, “I am seriously aggrieved”.
According to Kenny, who is himself scheduled to be examined on November 8, 2018 a large portion of the documents he delivered in response to a notice to produce were not referenced during questioning of Batchelor by the liquidators’ counsel.
Kenny insists that the matter Batchelor was questioned about bears no relation to the examinable affairs of the companies Yeo and Rambaldi are investigating In the matter of Ainslie Harding & Wood Solicitors Pty Ltd (In Liquidation) & Ors.
He said he didn’t know if Yeo and Rambaldi’s counsel was inadequately briefed or if there was another reason for what he described as “the most egregious breach of duty I’ve ever come across” but it was what Kenny did after The Age report that’s had the liquidators’ staff and advisors scrambling.
On September 7 Kenny sent The Age’s publishers a concerns notice in relation to its report of August 28. Then on September 12 he filed an interlocutory application in the Federal Court seeking access to the transcript of Batchelor’s examination on August 28 and 29.
Orders made on September 18 by Justice Jonathan Beach provide some insight. Yeo and Rambaldi are to provide “to the solicitors for the The Age Newspaper on or before 4.00pm on 19
September 2018, a copy of the transcript of the examination of Mr Timothy Batchelor on 28 and 29 August 2018 (Batchelor Transcript) for the purpose of The Age responding to the Concerns Notice dated 7 September 2018”.
The liquidators were also required to “Provide to Mr Simon Wilson QC as Counsel for Mr Kenny on or before 4.00pm on 19 September 2018, a copy of the Batchelor Transcript, for the sole purpose of enabling Mr Wilson QC to provide to Mr Kenny legal advice on the question of fair and accurate reporting with regards to the publication of an article in The Age newspaper on 28 August 2018 (the defamation question).”
INO was not familiar with Simon Wilson QC so we checked out his CV. It includes the following: “In Defamation matters, Simon has represented numerous identities from the world of Sport, Politics and Entertainment, and he holds the record plaintiff’s verdict in Victoria for a contested defamation trial before a Judge and/or Judge and Jury.”
Yeo and Rambaldi will be hoping they can side step this particular sideshow as they advance their mammoth examination because defamation battles can inflict collateral damage and the threat of contagion is real. Expect the omissions to be rectified when Batchelor is recalled to the court on October 2.