Didasko Institute - Case Update

The Supreme Court of Victoria has dismissed an appeal by several La Trobe University executives who sought access to confidential affidavit material considered by the Court in issuing summonses for examination of the executives. The summonses were obtained by the liquidators of Didasko Institute, an education provider formerly in a commercial relationship with La Trobe pursuant to which Didasko provided various La Trobe courses under licence.

In March 2023, Tim Bradd and Andrew Yeo of Pitcher Partners were appointed receivers over Didasko. The receivers and La Trobe entered into a data transfer agreement under which La Trobe was to pay the receivers $250,000 in exchange for access to data held by Didasko which concerned La Trobe’s courses and students.

In April 2023, Didasko was placed in liquidation by way of a creditors’ voluntary winding-up. Following the voluntary winding-up, a dispute arose between the liquidators and La Trobe over who retained the intellectual property in the course material under the course services agreement, which La Trobe continued using following Didasko’s collapse. The liquidators argued that Didasko retained the IP rights to those materials and that La Trobe’s license had either expired or been revoked.

Following a period of correspondence between the parties, in April 2024, the liquidators applied to the Court pursuant to s 596B of the Corporations Act 2001 seeking to examine various individuals including the current and former Vice Chancellor and President of La Trobe (who were also professors), its Chief Financial Officer and former Director of Finance, its Chief Operating Officer and various other executives.

The examinees argued that the summonses were an abuse of process, claiming they were issued for improper purposes: (1) to embarrass or inconvenience senior La Trobe staff, (2) to gain an unfair forensic advantage in prospective litigation over the IP, and (3) to further the interests of the secured creditor, Melbourne Education Nominees (MEN), rather than Didasko. They sought access to the supporting affidavit to substantiate their arguments.

The Court rejected all three abuse of process arguments. The Court found no evidence that the examinations were pursued to cause embarrassment, especially as each examinee had legitimate involvement with Didasko’s affairs. Similarly, the Court held that the examinations were not being used to rehearse cross-examinations or improperly support future litigation, noting the absence of any existing litigation and the speculative nature of the claims. The Court also dismissed the allegation that the liquidators were acting to advance MEN’s interests, finding no evidence that MEN had initiated litigation or improperly influenced the liquidators' duties.

As a result, the Court found that no arguable case had been established to support access to the confidential affidavit. The appeal was dismissed and the examinations were permitted to proceed.

Read the decision HERE.

Professionals involved:

• Andrew Silver of the Victorian Bar (instructed by BlueRock Law) for the liquidators

• Daniel Bongiorno of the Victorian Bar (instructed by Lander & Rogers) for the examinees