caselaw.nsw.gov.au

Rinehart v Rinehart - NSW Caselaw

️Fri Jul 06 2018

Judgment

HER HONOUR: Before me for hearing on 5 and 6 July 2018 (sandwiched between matters in the duty list) were applications to set aside a number of subpoenas that have been issued by the plaintiff (Bianca Rinehart) in advance of the hearing, listed before me on 27 August 2018, of her application, as trustee for The Hope Margaret Hancock Trust (the HMH Trust), pursuant to s 247A of the Corporations Act 2001 (Cth) for access to the books of the second defendant (Hancock Prospecting Pty Ltd, to which I will refer as HPPL).
The substantive dispute between the parties to these proceedings is the claim by Bianca Rinehart against her mother (Georgina Rinehart, to whom I will refer as Gina) and others for declaratory and other relief in relation to alleged oppressive conduct, breach of directors’ duties and breach of contract in relation to matters occurring with respect to, among other things, the payment (or non-payment) of dividends by HPPL. As in my previous judgment in these proceedings (Rinehart atf The Hope Margaret Hancock Trust v Rinehart [2017] NSWSC 803) I refer to the Rinehart family members by their first names without intending any disrespect.

Background

The background to these proceedings (and to the applications now before me) has been set out in my earlier judgment and will not here be repeated save as necessary to explain some of the submissions made on the present applications.
The statement of claim in these proceedings was filed on 21 March 2017 following the receipt by Bianca of judicial advice given by Rein J (see Bianca Hope Rinehart as trustee of The Hope Margaret Hancock Trust [2017] NSWSC 282) to the effect that she would be justified in so doing. In the statement of claim various allegations are made against HPPL and its directors. Those allegations include allegations of breach of directors’ duties by Gina (see Part C of the statement of claim at [626]-[631]) as well as allegations that others of the individual defendants were involved, within the meaning of s 79 of the Corporations Act, in certain of the alleged contraventions by Gina (see [632]-[633]). Leave will in due course be sought by Bianca pursuant to s 237 of the Corporations Act to bring derivative proceedings on behalf of HPPL against the directors for the alleged breaches of duty (it being the subject of one of the interlocutory applications the hearing of which I have stayed in accordance with my earlier decision).
Relevantly, for present purposes, it is alleged at [630] that Gina breached her duties as a director by exercising her powers and/or duties as a director or officer of HPPL to cause HPPL to enter into contracts and to pay out its corporate funds: otherwise than in good faith in the best interests of HPPL as a whole; improperly to gain an advantage for herself; improperly to cause a detriment to HPPL; other than for a proper purpose; and without the degree of care and diligence that a reasonable person would exercise if he or she was a director or officer of HPPL in HPPL’s circumstances and held the offices and had the responsibilities that Gina had.
The alleged conduct on which the allegation at [630] is based is pleaded at [219], [353]-[354], [359]-[360], [366]-[369] and [379]-[380] of the statement of claim. Counsel appearing for Gina on the present applications (Mr Bova) emphasises that there is no allegation in the statement of claim that the HPPL directors breached their statutory or general law duties in causing HPPL to make any donations or sponsorship payments; from which he submits it may be inferred that Bianca has no reasonable basis on which to make such an allegation at this stage – a matter that it is submitted is an important background fact when considering the issues as to the legitimate forensic purpose in issuing the subpoenas the subject of the present applications.
As part of the relief claimed in the statement of claim (at [680]), an order is sought that Gina swear or affirm an affidavit setting out the matters listed at [680.6]-[680.21]. That relief is claimed by reason of the matters pleaded at [680.1]-[680.5], including: at [680.1], Gina causing HPPL to misuse its corporate funds (as alleged at [630]); at [680.2], the oppressive conduct of HPPL’s affairs in relation to that misuse of funds (as alleged at [658]-[660]); and, at [680.4]-[680.5], that Bianca has sought information that would enable her to determine whether “such costs” (seemingly referring to the costs referred to at [680.3]) and other information as to the expenses of HPPL and has not received substantive responses to all of those requests.
Part of the information sought to be provided on affidavit by Gina, pursuant to the relief sought at [680], is the following:

680.16 The identity of the entities that have received sponsorship and donations from HPPL Group companies in respect of FY 14, FY 15 and FY 16.

680.17 The basis on which GHR [Gina] considered it was in the best interests of HPPL for those amounts to be paid.

680.18 Whether GHR knew the purpose for which the sponsorship and donation funds would ultimately be directed when she decided to cause HPPL to disburse those funds.

680.19 The ultimate purpose for which the sponsorship and donation funds will be used.

680.20 The cause of HPPL’s significant increase in sponsorship and donation expenses from FY 13 to FY 16.

I have referred above to my earlier decision in these proceedings. That related to a dispute as to the order in which certain interlocutory applications should be determined – including Bianca’s applications for leave to bring a derivative suit and to inspect the books of HPPL (jointly made in what I will refer to as Bianca’s “leave motion”) and the separate applications of Gina and HPPL to stay the proceedings and to refer the matter to arbitration.
It was HPPL’s submission at that time (which will apparently be sought to be re-agitated when Bianca’s s 247A application is before me in August this year) that the Court should not hear and determine Bianca’s leave motion before hearing HPPL’s stay application. The reasons advanced by HPPL in that regard need not here be canvassed – they will no doubt have to be dealt with in due course. Nevertheless, for present purposes I note that HPPL points to the fact that it was not until the directions hearing held on 28 February 2018 that it was suggested for Bianca that her s 247A application (which formed part of the relief in her leave motion) ought be determined (separately) in advance of all other applications (the hearing of which has been stayed pending the determination by the High Court of an issue in relation to the proper construction of the relevant arbitration clause – cl 20 – of the August 2006 deed referred to as the Hope Downs Deed). For Bianca, it has been foreshadowed that she will press the argument that she is not bound, as trustee, by a deed entered into by her in her personal capacity (though to which her predecessor as trustee agreed to be bound).
Following the listing of Bianca’s s 247A application for hearing, Bianca’s solicitors, by letter dated 6 March 2018, identified 13 categories of HPPL’s documents to which Bianca seeks access. Category 4 in that letter, headed “[s]ponsorship and donations” includes the following:

Sponsorship and donations

4. The plaintiff seeks access to all documents recording:

4.1 the payment of company funds to third-parties by way of sponsorship or donation during the years ending 30 June 2011 to 30 June 2017 and to date, including the terms on which, or pursuant to which, such funds were paid;

4.2 matters taken into account, consideration, deliberations and/or approval by the directors of the company of each payment of company funds to third-parties by way of sponsorship or donation during the years ending 30 June 2011 to 30 June 2017 and to date;

…

4.6 communications between the company (or any directors or officers of the company) and Barnaby Joyce between 30 June 2011 to date;

…

4.8 matters taken into account, consideration, deliberation and/or decisions to give a prize to Barnaby Joyce in the sum of $40,000 in association with “Agriculture and Related Industry Day”[.]

Bianca has issued three subpoenas in aid of her s 247A application: a subpoena to CEF Pty Ltd (CEF); a subpoena to the Institute of Public Affairs (IPA); and a subpoena to a Federal politician, Senator Barnaby Joyce. None of the subpoena recipients is a party to these proceedings. I will set out in due course the documents sought under the respective subpoenas. The subpoenas to CEF and IPA were issued on 10 April 2018; the subpoena to Mr Joyce was issued later, on 12 June 2018. (Gina attaches some significance to the fact that the subpoena to Mr Joyce was only issued some two months after the first two subpoenas – see [28] below.)
The two motions before me now are: a notice of motion dated 18 May 2018, filed by CEF seeking an order under rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) setting aside the subpoena issued to it (the CEF subpoena); and an amended notice of motion filed 14 June 2018 by Gina, seeking an order pursuant to the said rule or in the Court’s inherent jurisdiction setting aside all three subpoenas.
Gina’s amended notice of motion seeks, in the alternative to an order setting aside the subpoenas, an order that Bianca and her legal representatives not be permitted to inspect the documents produced to the Court by IPA and, in the further alternative, an order that, in the event that Bianca is granted access to any documents produced to the Court by any of the subpoena recipients, the documents are to remain confidential and are not to be disclosed to anyone other than the parties and their legal representatives until the conclusion of these proceedings (and any appeal therefrom) and subject to any application to revoke or vary these orders.
HPPL does not seek to set aside any of the subpoenas but has made submissions as to the timing of access to documents produced in answer to the subpoenas in the event that one or more of the subpoenas is not set aside. IPA has made no application to set aside the subpoena issued to it (the IPA subpoena) and has already produced documents in answer to that subpoena. Nor does Mr Joyce make any application to set aside the subpoena issued to him and he has recently produced one document (an email chain) in answer to that subpoena (which, having been invited so to do by Mr Bova and there being no objection thereto by the other parties, I have inspected and which does not appear to fall within the documents sought by that subpoena in any event).

The respective subpoenas

It is convenient at this stage to set out the documents sought by the respective subpoenas.

CEF subpoena

By way of background, CEF is a company incorporated in Victoria in 2014, whose principal place of business is in Adelaide and whose sole shareholder and director is a solicitor based in Adelaide (Mr Charles Bailes), the managing partner of the firm Tindall Gask Bentley Lawyers (see ASIC extract, Exhibit C p 107; email dated 20 March 2018 from Mr Bailes to Bianca, Exhibit C pp 109-111). Mr Bailes (in the email to which I have just referred) has confirmed that CEF is the trustee of the CEF Trust and that the role of CEF, as trustee, “is of course to further the purposes of the CEF Trust”. Those purposes have not been articulated to Bianca (nor to this Court).
A schedule of donations and sponsorships paid or provided by HPPL for the financial years ending 30 June 2015-2017 (provided to Bianca’s solicitors by the solicitors acting for HPPL) (Exhibit B pp 77-78) lists donations to CEF as trustee for the CEF Trust in a total of $2.5 million for the 2015 financial year and $1.5 million in the 2017 financial year.
Searches of State, Territory and Federal registers of charities that Bianca’s solicitor, Mr Timothy Price, has caused to be conducted have not enabled him to locate any reference on those registers to the CEF Trust (though he has deposed that there is a reference to two other similar entities in Western Australia and Tasmania styled “The Trustee for the CEF Trust” – those entities, however, having different ABNs to that of CEF) (see the affidavit sworn 13 June 2018 of Mr Price at [25]).
In Mr Bailes’ 20 March 2018 email to Bianca, it was suggested by Mr Bailes that the provision of information to individual shareholders of companies which may have provided funds to the trust might prejudice the possibility of future donations from such companies.
The documents or things required to be produced under the CEF subpoena, relevantly, include:

2. All documents created or received between 10 July 2014 to date referring to any payment or donation of money made by or on behalf of HPPL or any HPPL Related Party to CEF or any CEF Related Party.

3. All documents recording the purpose or terms relating to any payment referred to in paragraph 2 above.

4. A copy of any document or documents dated, created, sent or received recording the terms of the CEF Trust during the period 10 July 2014 to 30 June 2017.

5. All documents recording any communications between HPPL or any HPPL Related Party and CEF or any CEF Related Party concerning any enquiries or questions raised or received from the plaintiff.

The schedule to the CEF subpoena contains definitions of various of the terms used in [2]-[5] of the schedule, including:

‘CEF Related Party’ means any entity owned or controlled by CEF, the CEF Trust and Charles Morland Bailes.

‘HPPL Related Party’ means any entity owned or controlled by HPPL, the Georgina Hope Foundation including any entity owned or controlled by the Georgina Hope Foundation, Gina Rinehart including any entity owned or controlled by Gina Rinehart and any agent or representative of HPPL, the Georgina Hope Foundation or Gina Rinehart.

IPA subpoena

Again, by way of background, IPA was founded in 1943 (see its 2017 Annual Report, Exhibit C p 52). It was described in the course of submissions on the present application as a “conservative think tank”. The objective of the Institute is said, in its 2017 annual report, to be to further the individual, social, political and economic freedom of the Australian people. Its 2017 annual report discloses that:

The Institute of Public Affairs relies entirely on the voluntary financial contributions that are freely donated by the members and supporters of the Institute.

86 per cent of the IPA’s revenue is donated by individuals, 12 per cent is received from foundations, 1 per cent from businesses, and 1 per cent from other sources such as interest. The IPA neither seeks nor receives any funding from government. In addition to the membership fees contributed by IPA members, the IPA received 2,913 separate donations during 2016-17.

At the end of 2017 the IPA had over 4,500 members, including more than 1,000 IPA Young Members. …

The 2017 Annual Report also discloses that in November 2016 the Board of Directors of IPA bestowed Honorary Life Membership of IPA on three individuals, one of whom was Mrs Gina Rinehart, “in recognition of the commitment these three great Australians have made to the work of the Institute of Public Affairs over many years” (see Exhibit C p 62).
In the schedule of HPPL donations and sponsorships provided to Bianca’s solicitors, it is disclosed that HPPL paid or provided amounts to IPA in a total of $2.3 million for the 2016 financial year and $2.2 million in the 2017 financial year. The annual reports of IPA for those years do not mention HPPL as a donor and the figures set out in the reports record that the vast majority of donations were received from individuals. Bianca submits that the inference to be drawn therefrom is that Gina herself has been credited by IPA for HPPL’s donations. Bianca also points to the fact that IPA has not answered Bianca’s queries as to how HPPL’s donations have been used (see Mr Price’s affidavit at [18], Exhibit C at pp 70-74).
The documents or things required to be produced under the IPA subpoena include:

2. All documents created or received between 1 July 2013 and 30 June 2017 referring to any payment or donation of money made by HPPL or any HPPL Related Party to IPA.

3. All documents recording the purpose or terms relating to any payment referred to in paragraph 2 above.

4. All documents recording communications between HPPL or any HPPL Related Party and IPA referring or relating to the bestowing of honorary life membership of IPA to Mrs Gina Rinehart in November 2016.

5. All documents recording any communications between HPPL or any HPPL Related Party and IPA concerning any enquiries or questions raised or received from the plaintiff.

6. All documents recording communications between HPPL or any HPPL Related Party and IPA relating to the preparation of the 2017 Annual Report.

In the schedule to the IPA subpoena, the term “HPPL Related Party” is defined in the same terms as in the CEF subpoena.

Joyce subpoena

The third of the subpoenas in question is a subpoena that was issued to Mr Joyce (the Joyce subpoena) on 12 June 2018,following, at least in a temporal sense, certain tweets posted by Bianca – to which Mr Bova points as demonstrating animus on the part of Bianca towards Mr Joyce. It is suggested that the timing of the issue of this subpoena (which occurred after a much publicised television interview in which Mr Joyce had participated) was consistent with an intention to embarrass Mr Joyce.
The relevant background to note in relation to this subpoena is that (as became a matter of some media interest at the time) at a “National Agriculture and Related Industries Day” function in Canberra on 21 November 2017 a monetary prize was awarded to Mr Joyce, he being presented by Gina with a cheque in the sum of $40,000 (which cheque Mr Joyce subsequently returned or declined to accept).
Bianca sought an explanation from HPPL about the payment, including board papers recording the decision to pay it to Mr Joyce and an explanation about the relationship between HPPL and Mr Joyce (see Exhibit A p 26, p 34; Exhibit C p 229). HPPL’s response was to the effect that: there was no relationship between HPPL and Mr Joyce: the prize had been returned; and the prize was “for agricultural contribution associated with the “Agriculture and Related Industry Day’” (Exhibit B pp 26, 34). Bianca says that documents obtained by The Sydney Morning Herald through freedom of information inquiries suggest that, at the least, HPPL was involved in funding and organising the “Agriculture and Related Industry Day” “to the tune of at least tens of thousands of dollars” (Exhibit C, pp 173, 179, 181); that the day was Gina’s idea (Exhibit C, pp 162, 168); and that Gina corresponded with Mr Joyce and his department in relation to HPPL’s funding and organising the Day (Exhibit C, pp 161-220, 221-223).
The schedule of sponsorships provided by HPPL to Bianca does not expressly record payments for this event or to Mr Joyce (but Bianca accepts that the schedule only covers the period to 30 June 2017). Bianca’s requests for further information on the issue, including as to donations made after 30 June 2017, are said to have been unanswered (see Mr Price’s affidavit at [43]-[44], Exhibit C pp 221, 227, 229).
The Joyce subpoena calls, relevantly, for the production of the following documents or things:

2. All documents created or received between 28 May 2015 to date:

2.1 referring to or recording any Financial or Other Assistance received by you or any Joyce Related Person or Entity from Hancock Prospecting Pty Ltd (HPPL) or any HPPL Related Person or Entity;

2.2 referring to or recording any offers or proposals of Financial or Other Assistance made to you or any Joyce Related Person or Entity from HPPL or any HPPL Related Person or Entity whether accepted or not;

2.3 referring to or recording any proposed or actual Financial or Other Assistance for proposed or actual conduct by HPPL or any HPPL Related Person or Entity of the “National Agriculture and Related Industries Day” function in Canberra on 21 November 2017 and/or the prize to be given to you at that function and/or the prize given to you at that function;

2.4 recording communications between you or any Joyce Related Person or Entity and Gina Rinehart or any person on her behalf:

(a) referring to the matters described in paragraphs 2.1, 2.2 or 2 3 above; or

(b) referring to litigation or disputes between Gina Rinehart and any of her children.

3. All documents referring to or recording your email to Hope Welker dated 11 September 2011 (a copy of which is Annexure A to this subpoena) or the content of that email.

The email dated 11 September 2011, a copy of which is Annexure A to the Joyce subpoena, appears to offer advice by Mr Joyce to Ms Welker (another of Gina’s daughters and a beneficiary of the HMH Trust) to get “family problems” “back in house and out of public view”. There is nothing on the face of the email to suggest that it was sent to Bianca. The email is particularised in the statement of claim (at [21] of the particulars to [211]) in respect of the allegation that, from 5 September 2011 until 1 October 2013, Gina directly and through HPPL “applied threats and intimidation” to beneficiaries of the HMH Trust (including Bianca) in order to coerce them into withdrawing their application to have Gina removed as trustee. (Bianca points in this regard to the observations made by Brereton J in Rinehart v Rinehart [2015] NSWSC 646 at [224]; [230].)
The schedule to the Joyce subpoena includes broad definitions of “Financial or Other Assistance”, “HPPL Related Person or Entity” and “Joyce Related Person or Entity” as follows:

‘Financial or Other Assistance’ means:

(a) money;

(b) loans;

(d) donations or sponsorships to you or any cause or political party related to you;

(e) the purchase of goods or services connected to you or any cause or political party related to you;

(f) any fund raising for you or any cause or political party related to you including for example:

(i) the purchase of raffle tickets or prizes; and/or

(ii) the use of properties, aircraft or boats owned, leased or hired by HPPL or any HPPL Related Person or Entity.

‘HPPL Related Person or Entity’ means:

(a) Gina Rinehart;

(b) any corporate entity or trust connected to HPPL or Gina Rinehart;

any foundation or trust connect [sic] to HPPL including the Georgina Hope Foundation, the Rinehart Foundation and/or the CEF Trust.

‘Joyce Related Person or Entity’ means:

(a) any member of your family;

(b) any employee of the Commonwealth of Australia working under your direction or supervision including any member of your political staff, the staff of the Office of the Deputy Prime Minister or the Department of Agriculture and Water Resources at any time;

(c) any person providing you with assistance or advice in connection with any campaign for your election to the Parliament of the Commonwealth of Australia;

(d) any corporate entity in which you are a director or shareholder or have an interest of any kind in;

(e) any trust in which you hold a legal or beneficial interest;

(f) any person or entity with whom you have a contract, arrangement or understanding (whether reduced to writing or not) to receive or hold any financial assistance on your behalf or for your benefit.

Bases on which it is submitted that all three subpoenas should be set aside

Broadly speaking, the primary basis on which Gina seeks orders setting aside all three of the subpoenas is that there is no legitimate forensic purpose for any of the subpoenas, in the absence of which it is said that the subpoenas amount to no more than a fishing expedition. It is submitted by Mr Bova, in essence, that in order for Bianca to establish a legitimate forensic purpose to issue the subpoenas in advance of the s 247A hearing she must establish at least a prima facie case for investigation into her suspicions as to breach of directors’ duties in relation to the payments made to CEF, IPA and Mr Joyce; and that, on the evidence before the Court, she cannot do so. At T 26.44, Mr Bova submitted:

Effectively the submission is that there is no basis for any suggestion that the directors have acted in breach of duty in making these payments and, therefore, no legitimate forensic purpose in issuing the subpoenas, because the notion of good faith and proper purpose will not be advanced at all by the issuing of the subpoenas to these third parties in circumstances where the objective documentary material does not even establish a cause for investigation into the payment of these respective donations. It is, effectively, a fishing trip, trying to make good one’s case from material that is in the hands of third parties and it is speculative as to whether that material exists in most of the categories.

Senior Counsel for CEF, Mr Duggan SC, adopts a similar position (though understandably only addressing submissions in relation to the subpoena to CEF).
Submissions were also made by one or both of Gina and CEF that the subpoenas should be set aside on the following other bases: that they were issued prematurely; that they are not necessary for the resolution of the real issues in dispute in the s 247A application (and hence not consistent with Practice Note SC Eq 11); that they are an abuse of process (either as a means of circumventing a preliminary discovery application or because they seek disclosure in breach of Practice Note SC Eq 11); and that they are impermissibly broad and oppressive. There was also a suggestion, in relation to the IPA subpoena (in respect of which some 1,800 pages of documents have already been produced to the Court – see letter dated 6 June 2018 from Jones Day, the solicitors acting for Gina), that the subpoena had already been discharged.

Stated purpose for the issue of the subpoenas

The solicitor acting in this matter for Bianca, Mr Price, deposed in his affidavit sworn 13 June 2018 as to his purpose in causing the subpoenas to be issued, as follows:

10. I apprehend that HPPL will, in its resistance to the Court making orders pursuant to section 247A, amongst other things, contend that there is no basis for any genuine concern as to the administration of the company’s affairs in respect of the matters identified in the statement of claim (including in respect of all company money paid in respect of donations and sponsorships whether specified in the pleading or not and/or falling within the categories of documents) and, for that reason, her application for inspection is not made in good faith and for a proper purpose, or that her application should otherwise be declined as a matter of discretion.

11. With that apprehension in mind and having regard to information which has come to light since the last occasion this matter was before the Court, I have caused the following subpoenas to be issued for the purpose of obtaining evidence to assist in meeting those contentions … [then identifying the three subpoenas in question]

In a letter dated 1 June 2018 to the solicitors for CEF (Exhibit C pp 138ff), Mr Price similarly stated as follows:

2.10 our client had made enquiries of the defendants as to the purpose of the CEF Trust and the payment of money to your client [CEF] and has not received a response to those enquiries. In these circumstances, our client apprehends that the second defendant [HPPL] will continue to resist providing such information;

…

2.13 our client’s application for the books of the second defendant [HPPL] is contested. Our client apprehends that the second defendant will, amongst other things, contend that there is no basis for any genuine concern as to the administration of the company’s affairs in respect of all of those matters identified in the pleading (including in respect of all moneys paid for donations and sponsorships whether specified in the pleading or not) and, for that reason, our client’s application is not made in good faith and for a proper purpose, or that our client’s application should otherwise be declined as a matter of discretion;

2.14 against a background where the defendants have resisted and evaded providing information to our client about the purpose of the donations to your client [CEF] and are contesting the interlocutory relief our client seeks, the subpoena seeks documents which will likely assist our client in its application for interlocutory relief. It is comfortably on the cards that the documents sought by the subpoena would assist our client in establishing that there is a reasonable basis, and certainly a substantive and not fanciful basis, to consider that the payment to your client by the second defendant involved a breach of duty on the part of the directors or management of the second defendant. That is a legitimate forensic purpose.

In written submissions on the present application, the stated purpose for the issue of the subpoenas was articulated (at [28])as follows:

The primary forensic purpose of each of the subpoenas is to assist Bianca in meeting the threshold requirement of s 247A by demonstrating, objectively, that there is a case for investigation in relation to the donations and sponsorships of HPPL, including as to whether HPPL’s directors have acted consistently with their statutory and general law duties to HPPL in causing HPPL to make those payments. To that end, the subpoenas seek documents which would, if produced, assist in demonstrating that case for investigation by explaining the circumstances in which donations to IPA , CEF and Joyce were made and the purposes of those donations (to the extent that the records of IPA, CEF and Joyce can do so).

At [31], a second purpose was identified, namely to assist Bianca in persuading the Court to exercise its discretion in her favour (assuming the threshold for relief is established) on the basis that the strength of the case for investigation is a discretionary matter that should weigh in favour of a favourable exercise of the Court’s discretion.
In oral submissions, Counsel for Bianca, Mr Thomas, confirmed those two purposes for the issue of the subpoenas (see T 24/25). Insofar as I raised the concern that the submission put by Bianca as to legitimate forensic purpose (that there was a reasonable likelihood that the material sought will bolster her case for relief under s 247A) involved an element of circularity (i.e., to see materials that will answer the enquiry as to whether there is a case for investigation in order to assist the argument that it was reasonable for to suspect that there was a breach of directors’ duties in the first place), Mr Thomas submits that there is no such circularity and that the issue of the subpoenas is an orthodox use of the Court’s processes to strengthen a case that already exists (see the exchange at T 48/49).

Relevant legal principles

As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose:

… it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.

Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]):

… the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise.

In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have “a sufficient apparent connection to justify their production or inspection” (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for “could possibly throw light on the issues in the main case” (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306).
More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]).
Whether the formulation of the test in civil proceedings is best expressed as an “on the cards” test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could “possibly throw light on” an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that “it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]”), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA).
Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a “fishing expedition”, in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said:

A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere “fishing expedition”.

Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes “fishing”.
In Universal Press Pty Limited v Provest Limited [1989] FCA 402, Hill J stated (at [9]-[10]):

Like Clark J, as his Honour then was, in Southern Pacific Hotel Inc v Southern Pacific Hotel Corporation (1984) 1 NSWLR 710 at p 717, I am of the view that there are two separate grounds for setting aside a subpoena that are often confused. The first, to which I have already referred, is the ground that the subpoena is so widely framed as to be burdensome and oppressive and therefore an abuse of process. The second, often linked with the first, is that the subpoena requires the addressee, being a third party to the litigation, to produce all documents which may afford evidence of the matters in dispute between the parties, is thus used as a way of obtaining discovery against a person not party to the litigation and so should be set aside (cf Small’s case supra).

Where the objection to a subpoena is that it is a misuse of the process of the Court for the purpose of discovery, what is usually meant is that it is an abuse of process to require a person not a party to litigation to form a judgment as to what is relevant to the issues joined in a proceeding to which he is not a party: National Employers’ Mutual Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at p 382. It does not follow that a subpoena, issued in circumstances where the person requesting its issue is uncertain whether any documents exist which fall within the description in the subpoena, that description being otherwise precise, will be bad…

It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed)).
In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428; [2005] FCAFC 115 (Tyco), Hill J considered (at [34]) that it would clearly be an abuse of process for an applicant for pre-action discovery to issue a notice to produce the very documents sought by the action for pre-action discovery and said (at [46]) that such an applicant “will not have given the notice to produce in good faith, but rather, will have acted in a way that is an abuse of process”. In Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393 just such a conclusion was drawn by Slattery J (see at [28]):

Hill J’s statement of principle in Tyco directly covers the present application. The documents being sought by the subpoenas are identical to the documents sought in the application for preliminary discovery under UCPR, r 5.3. Indeed the documents sought under the subpoenas are somewhat more extensive. The essence of the abuse of process in these circumstances is that the delivery of the documents to Yes Family in response to the subpoenas would set at nought the whole preliminary discovery application, the purpose of which is to determine whether or not Yes Family should have those documents before action. Granting the application would allow Yes Family to bypass the requirements of UCPR, r 5.3. [my emphasis].

More recently, it has been said that a subpoena will be an abuse of process where it is used as a means of obtaining disclosure of documents which, in accordance with para 4 of Practice Note SC Eq 11, could only be obtained before the service of evidence in exceptional circumstances necessitating disclosure (see New Price Retail Services Pty Ltd v Hanna [2012] NSWSC 422 at [19]; considered in The Owners - Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528 per Ball J).
That said, in Tyco, Hely J said (at [54]):

… at least prima facie, it would be an abuse of process for an applicant for preliminary discovery to seek to compel production of documents by notice to produce, when the production of those documents is sought under O 15A, r 6. But it does not follow, for example, that a subpoena sought to be issued by an applicant for preliminary discovery against a third party would necessarily be an abuse, depending upon the scope and purpose of the subpoena. [my emphasis]

I turn with the above principles in mind, to the respective submissions made on the present applications.

Submissions for Gina

For Gina, it is submitted that the reference in Mr Price’s affidavit (and correspondence) as to an “apprehension” as to how HPPL will respond to the s 247A application (noting that submissions are not yet due on the s 247A application) demonstrates the speculative nature of the subpoenas.
I have already noted the submission made by Mr Bova to the effect that, in the absence of a prima facie case for investigation of breach of directors’ duties in relation to what I might refer as the impugned payments, there can be no legitimate forensic purpose for the issue of the subpoenas. It is submitted that critical to Bianca showing that it is likely that the documentation will materially assist on an identified issue is the identification of that issue with precision; and that there has been a lack of precision on the part of Bianca’s legal representatives in identifying precisely the issue (as between what was put in the correspondence referred to above, the affidavit evidence of Mr Price and the submissions made for Bianca on the present applications).
It is submitted that, in circumstances where the legitimate forensic purpose is expressed in such broad terms as it was – namely, to assist in making good the proposition that Bianca (objectively determined) is acting in good faith and for a proper purpose in seeking the documents referred to in category 4 of the documents identified in the 6 March 2018 letter (i.e., the documents relating to sponsorships and donations)) – it cannot be the case that documents in the possession of third party recipients of donations (in particular, IPA and CEF) are likely materially to assist Bianca in that way.
As to the submission put for Gina (and CEF) that the subpoenas are not “necessary” for the resolution of the real issues in dispute, Gina accepts that Practice Note SC Eq 11 does not apply in terms to subpoenas. Nevertheless it is argued that, insofar as it has been recognised that “very similar considerations” attend the issuing of subpoenas (see what was said in New Price Retail Services Pty Ltd v Hanna at [19] (McDougall J); In the matter of North Coast Transit Pty Limited [2013] NSWSC 1912 at [56] (Black J); and In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd (in liq) at [49] (Gleeson JA)), it is necessary for Bianca to demonstrate that each of the categories of documents in each of the subpoenas is “necessary” for the resolution of the real issues in dispute in the s 247A application.
It is submitted that, given the acknowledgment that there is only an apprehension as to how HPPL will approach the s 247A application, Bianca cannot demonstrate necessity; and that, since there is presently no way of knowing what issues will arise except in a very broad sense, it is not possible to demonstrate the precise issues in respect of which production of documents is required.
Complaint is also made as to the breadth of the terms of the subpoenas in this regard. It is submitted that it cannot be said that each of the categories of documents in each of the subpoenas is necessary for the purposes of the issues arising in the forthcoming s 247A application. By way of example, Mr Bova referred to the breadth of the documents sought in [2] and [5] of the CEF subpoena; [4], [5] and [6] of the IPA subpoena; and [2.2], [2.3]; [2.4] and [3] of the Joyce subpoena. It is submitted that these categories go well beyond what could conceivably be necessary (or relevant) to the s 247A application and amount to impermissible fishing.
In any event, even if “necessity” is not a requirement for the issue of the subpoenas, it is submitted that in the present case what has been done is an attempt to circumvent the Practice Note. (That said, Mr Bova accepted that if there were found to be a legitimate forensic purpose in relation to using the subpoenas for a 247A application, then exceptional circumstances would not need to be shown for the issue of the subpoenas – noting that the evidence in relation to the s 247A application has already been filed.)
Even if the Practice Note requirement of necessity is not applicable, it is argued for Gina that it is impossible to show apparent relevance in light of the concession by Mr Price (and Bianca) that they do not know the contentions HPPL will be making in the s 247A application. It is said that it cannot therefore be said that the documents sought could “possibly throw light” on the issues in the s 247A application, or that it appears to be “on the cards” that they will materially assist the plaintiff’s case.
This leads to the proposition that the subpoena is an abuse of process on the basis that the subpoenas are being used as a substitute for discovery or discovery against a third party and/or in order to obtain part of the very relief that Bianca is seeking in her s 247A application. It is submitted for Gina that this is plain from the fact that Bianca first justified the subpoenas to IPA and CEF on the basis that she had been “requesting information concerning the topic of sponsorships and donations since 2015 and has not been provided with any substantive information in response to those requests beyond” certain “limited and selective information”. In this regard Gina submits that there is a substantial overlap between the documents sought in the s 247A application and the documents sought in the various subpoenas.
It is submitted that it is premature for Bianca to have invoked the compulsory processes of the Court in circumstances where Gina’s application to stay the proceedings and refer the dispute to arbitration is extant and will not be determined until after the hearing commencing on 27 August 2018. In particular, it is submitted that while the proper forum for the dispute is in contest, it was inappropriate for Bianca to have caused the subpoenas to issue and as such they should be set aside as an abuse of process.
In relation to the IPA subpoena, in the alternative to setting it aside, it is submitted by Gina that the Court should order that Bianca and her legal representatives not be permitted to inspect documents produced to the Court by IPA (which it is accepted would have the same practical effect as setting the subpoena aside).
Finally, in the event that the subpoenas are not set aside, Gina seeks a confidentiality order in terms required by cl 20 of the Hope Downs Deed so as to preserve the confidentiality of the documents produced pending her application to stay the proceeding and refer the whole or part of the dispute to arbitration. It is submitted that if Gina is successful in referring the dispute to arbitration then there is no reason why documents produced in the proceeding should not be treated as though they were in the confidentiality regime mandated by the arbitration agreement pending the commencement of the arbitration.

Submissions by CEF

The grounds upon which CEF seeks that the CEF subpoena be set aside are similar to those raised by Gina. It is submitted that: the subpoena does not admit of a legitimate forensic purpose, in that the issues in dispute between the parties have not been defined and the evidence has not been filed; the subpoena is not ancillary to the relief sought by Bianca (both the final relief and relief pursuant to s 247A) but is being used to circumvent the need for such relief (prior to the time at which the entitlement to the documents has been determined); the subpoena is contrary to the practice encouraged by Practice Note No SC Eq 11 - Disclosure in the Equity Division; and the subpoena is being used as an impermissible substitute to discovery (being drafted in wide terms) and is a fishing expedition.
Mr Duggan SC argues that by reason of the stage that these proceedings have reached (i.e., prior to the service of a defence and evidence – this presumably referring to the substantive proceedings not the s 247A application for which no defence is required and in respect of which the evidence has already been served) Bianca needs to put forward exceptional circumstances to justify the subpoena issued to CEF and that such circumstances do not exist in this case. It is submitted that Bianca has already been informed as to the quantum of the payments to CEF (and the identity of the payee) and that the subpoena is being used as an “impermissible short-cut route” to ascertain documents which identify the ultimate purpose for the payment. CEF argues that given the relatively small amount of money involved (the $40,000 prize), and the limited relevance which the payment has to the final relief, an inference can be drawn that the purpose is to fish for documents in the hope that their disclosure might cause embarrassment.
It is submitted that the CEF subpoena is not being used as a process ancillary to either interlocutory or final relief being sought in the proceedings: the only relevant paragraph in the prayer for relief being [680], which seeks an order requiring Gina to file and serve an affidavit containing answers as to the ultimate purpose of the payments made; and that ordering the production of documents now would pre-empt that relief and would frustrate any defence.
CEF argues that the same situation pertains in respect of the application under s 247A Corporations Act 2001 for access to the books of HPPL. It is submitted that, by setting up a regime permitting access to the books of a company s 247A recognises the otherwise private nature of a company’s documents. It is submitted that in the present case the subpoenaed documents are sought for the same purpose as they are for the s 247A application, namely to ascertain the ultimate purpose of the payments made to the relevant defendants. It is said that allowing Bianca to inspect the documents through the subpoena process would render this aspect of the s 247A application otiose and thereby circumvent the operation of the section.
Further, it is submitted that the subpoena is drawn too widely. It is submitted that Bianca is using the subpoena process, impermissibly, as a substitute to discovery and that this is confirmed by [2.10] and [2.14] of the letter dated 1 June 2018 from her solicitors (see [39] above) in which concern is expressed as to HPPL’s intention to continue to resist providing such information.
CEF emphasises that, as a proprietary company, it has a general right to keep its documents and affairs private. It argues that the statutory procedure contained in s 247A provides a method by which Bianca might have access to documents and information she seeks without infringing upon CEF’s right to keep its documents private and that the statutory procedure should be exhausted prior to the issue of a subpoena in the form currently before the Court. It is further submitted that the documents sought by the subpoena do not bear upon the statutory test contained in s 247A of the Corporations Act concerning good faith and proper purpose.
As to the complaint by CEF as to non-compliance with Practice Note SC Eq 11, CEF points to the observations made by Bergin CJ in Eq in Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 at [64]-[66]; namely that the purpose of the Practice Note is to ensure that disclosure is “confined to the real issues between the parties as defined by not only the pleadings, but also the evidence”. It is submitted that the current procedural state of the matter would not permit the scope of the subpoena to be confined to the real issues between the parties (given that those issues have not yet been settled) and hence the operation of the Practice Note would be subverted if the subpoena were not set aside.
Finally, it is submitted that a subpoena cannot be used as a substitute for discovery against a third party. Insofar as Bianca has contended in her submissions on the present application that “[i]t is comfortably on the cards that the documents sought by the subpoena would assist our client in establishing that there is a reasonable basis, and certainly a substantive and not fanciful basis, to consider that the payment to your client by the second defendant involved a breach of duty on the part of the directors or management of the second defendant”, CEF argues that what Bianca wishes to obtain are documents that would form a basis for a decision as to whether an action lies by reason of breach of duty. It is submitted that the end to which the subpoena is directed is a type that would ordinarily be dealt with by way of preliminary discovery.
Turning to the particular paragraphs of the subpoena, CEF submits: as to [2] that this is impermissibly wide and is being used as a fishing expedition in circumstances where Bianca has already been told the quantum of the payments (complaint also being made that it is impermissible in a general way to seek documents “referring” to those payments); as to [3], that insofar as it refers to the purpose of one or more of the defendants, this is the very information which is sought from the books of HPPL (it being submitted that the natural first place to turn in order to ascertain the purpose of the payment is the person who made them, who is also a party to the proceedings); and, as to [5] that, again, this is fishing and that the description of the documents indicates that if they existed they would form part of the books and records of HPPL.

Submissions of HPPL

As noted earlier, HPPL does not move to set aside the subpoenas. Rather, its concern is that the issue of the subpoenas not be permitted to prejudice or detract from HPPL’s asserted right under the Hope Downs Deed to have the dispute (including production of documents) determined confidentially in mediation or arbitration and the related application by HPPL to stay the proceeding and refer the parties to arbitration, principally under the Hope Downs Deed.
It is submitted that since that application will not be heard until after the hearing commencing on 27 August 2018, any further production or inspection of documents produced under the subpoenas should wait until at least the hearing commencing on 27 August 2018. Alternatively, HPPL argues that access should only be granted on the basis that, at least until resolution of the question of whether the s 247A application is to be referred to arbitration, the documents be ordered to be kept confidential by Bianca (and her solicitors and counsel) and that access be also granted to HPPL and other interested defendants on the same basis.
As already noted, the argument previously advanced for HPPL (and foreshadowed to be agitated again in August this year) is that Bianca’s s 247A application should not be heard and determined in advance of the HPPL stay application. In essence, HPPL submits that the whole proceeding must be stayed, and no part of the relief (including interlocutory relief and relief pursuant to s 247A) should be determined other than in arbitration since otherwise the Court will effectively be determining part of the proceeding and potentially exercising a power that the parties have agreed to vest in the arbitrator. HPPL argues that this is of particular concern in circumstances where disclosure of documents can be expected to proceed differently in an arbitration (by reason of the different procedures used in the arbitral process and also subject to the promises of confidentiality contained in cl 20 of the Hope Downs Deed).
It is submitted that the same reasoning applies in relation to the subpoenas in that the subpoenas appear to be directed towards requiring the production of documents to the Court, for use in public proceedings (the hearing of the s 247A application) and that this is undesirable in circumstances where there is an unresolved application pending to refer the whole of the proceedings to confidential arbitration (where, if HPPL is correct, it has a contractual right to have the arbitration proceed confidentially).
HPPL submits that the Court will be in a better position to deal with the subpoenas, including whether any restrictions should be placed on inspection or use of documents produced under them to preserve the confidentiality that they would be accorded if HPPL’s stay application is ultimately successful, once that stay application has been argued. HPPL says that, as a practical matter, the subpoenaed documents can be identified so that they can be produced at short notice if the Court considers that production and inspection is appropriate at the hearing commencing on 27 August 2018.
Alternatively, HPPL argues that inspection should be allowed only on the basis that the documents produced be subject to the confidentiality required by cl 20 of the Hope Downs Deed. It is submitted that there is no prejudice to Bianca in placing a condition to that effect on access and that such a condition would protects HPPL’s claimed rights.

Submissions for Bianca

The background to Bianca’s application to inspect the books of HPPL is said to be the findings that have been made in this Court in other proceedings: namely, the proceedings in which two of the beneficiaries of the trust had sought the removal of Gina as trustee of the HMH Trust (referring to Hancock v Rinehart [2016] NSWSC 11 – reference being made to the observation by Brereton J at [17]); and the proceedings in which orders for preliminary discovery were made by White J (as his Honour then was) (Rinehart v Rinehart [2015] NSWSC 1201; 108 ACSR 415 – reference being made to what was there said by his Honour at [93]).
In oral submissions at a directions hearing before me on 8 March 2018 it was put that the purpose of Bianca’s requests for inspection of the books of HPPL (made as part of her claim for interlocutory relief in prayer 2 of the statement of claim and in her notice of motion filed 27 April 2017) was that there was a serious case for investigation by Bianca, as a trustee shareholder, of the matters the subject of multiple requests for documents and a need for her to obtain a greater insight and understanding of the affairs and governance of the company (see T 1.32-2.18).
For Bianca, it is submitted that the existence of a legitimate forensic purpose for the issue of the subpoenas is to be assessed in light of s 247A of the Corporations Act and the principles governing its operation; in particular the requirement that the Court be satisfied that Bianca is acting in good faith and that the inspection is to be made for a proper purpose.
It is noted that “good faith and proper purpose” is a composite concept; that its existence is to be determined objectively; and that Bianca bears the onus in this regard (see Mesa Minerals Ltd v Mighty River International Ltd (2016) 241 FCR 241; [2016] FCAFC 16 at [22] (Mesa Minerals)). In Mesa, it was recognised that pursuing a reasonable suspicion of breach of duty is a proper purpose and that it is not necessary to establish that a breach of duty has occurred. What is said to be necessary is that the applicant demonstrate “a case for investigation” (Praetorin Pty Ltd v TZ Ltd [2009] NSWSC 1237; 76 ACSR 236 at [38]-[39]) or that the issue raised by the applicant is “substantive and not fanciful” (In the matter of Style Ltd, Merim Pty Ltd v Style Ltd [2009] FCA 314; 255 ALR 63 at [66]-[67]).
For Bianca it is said that, on the s 247A application, she intends to discharge her onus of establishing good faith and proper purpose by demonstrating a reasonable suspicion, a substantive and not fanciful issue, or a case for investigation, of breaches of directors’ duties. In particular, in relation to the Category 4 documents (relating to sponsorships and donations), that she intends to discharge her onus by demonstrating that there is a case for investigation in relation to the donations and sponsorships of HPPL and in relation to whether HPPL’s directors have acted consistently with their statutory and general law duties to HPPL in causing HPPL to make those payments.
It is submitted that the legitimate forensic purpose of each of the subpoenas is that it is “on the cards” that the documents they seek will assist Bianca in demonstrating that the s 247A application is brought in good faith for a proper purpose (that being a precondition to the relief under s 247A) by demonstrating, objectively, that there is a case for investigation in relation to the donations and sponsorships of HPPL, including as to whether HPPL’s directors have acted consistently with their statutory and general law duties to HPPL in causing HPPL to make those payments and in demonstrating that the Court’s discretion under s 247A should be exercised in favour of Bianca.
It is said that it is to that end that the subpoenas seek documents which would, if produced, assist in demonstrating that case for investigation by explaining the circumstances in which donations to IPA, CEF and Mr Joyce were made and the purposes of those donations (to the extent that the records of IPA, CEF and Joyce can do so). It is submitted that in this way, the documents sought by the subpoena have the capacity to “throw light on the issues” in the s 247A application (citing Trade Practices Commission v Arnotts Ltd), are “connected with or pertinent to” the proceedings (In the matter of VBN and Australian Prudential Regulation Authority (2005) 92 ALD 455) and have “a sufficient apparent connection” with the issues in the proceedings (citing White v Tulloch). It is said that it may reasonably be regarded as “on the cards” that the documents will materially assist the resolution of the issues in the proceedings (Alister v R). Reference is made generally in this regard to In the matter of Stone Cliff Pty Ltd (deregistered) [2017] NSWSC 918 at [12]; SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [21]-[31]).
Bianca argues that it is premature to make a determination now as to whether there is already has enough material to show a case for investigation justifying s 247A relief (since that would, in substance, involve reaching a conclusion now on a decision on a contested threshold question that will arise for determination as part of the s 247A application) and that the strength of the case for investigation is relevant to the issue of discretion on the grant of relief under s 247A (noting that HPPL has already said it will ask the Court to decline relief as a matter of discretion – see the transcript of 8 March 2018 at T 4.21-42; T 7; and HPPL’s written submissions of 8 March 2018 at [22]). It is submitted that the discretion is not circumscribed and is apt to be informed by the Court’s assessment of the entirety of the evidence and submissions at a final hearing (see In the matter of Combined Projects (Arncliffe) Pty Ltd [2018] NSWSC 649 at [23]).
As to CEF’s submission that the CEF subpoena should be set aside because it is of “minor relevance” to the proceeding, pleadings have not closed in the proceeding and there is no joinder or definition of the issues in the proceeding, it is argued for Bianca that it was not premature to issue the subpoenas at this stage.
First, it is said that the subpoenas are not of minor relevance to Bianca’s s 247A application and in any event that the Court does not assess whether to set aside a subpoena by reference to whether it is of minor relevance (such a question being difficult to answer prior to trial). Second, it is said that the fact that pleadings have not closed was known at the time the s 247A application was listed for hearing (the absence of defences being explicable by the fact that at least HPPL and Gina intend to argue that the proceedings as a whole should be stayed by reason of the Hope Downs Deed). Third, it is said that this is not a case in which defences are necessary in order for the Court to hear the s 247A application. It is argued that whether the s 247A application be conceived of as a final hearing or an interlocutory application is immaterial, as it has always been permissible to issue a subpoena in relation to a pending application (referring by way of example to Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100).
As to the contention that the subpoenas are being used as a substitute for, or to circumvent the requirements of, an application under s 247A, Bianca makes the following arguments.
First, that she is entitled to obtain documents which support the fact that there is a matter calling for investigation in respect of which s 247A relief should be granted in the exercise of the Court’s discretion; and that the mere obtaining of subpoena documents from a third party for those purposes is not a substitute for the inspection of the books and records of HPPL pursuant to s 247A.
Second, that the legitimate forensic purposes of the subpoenas are not to be confined merely to the category of documents sought from HPPL pursuant to the s 247A application that concerns donations. It is submitted that, in making an application under s 247A, an applicant is entitled to point to a number of concerns concerning the conduct of the respondent company in order to persuade the Court to permit an inspection of the books of the company that go beyond those particular concerns.
Third, as to the suggestion that there is a substantial overlap between the documents sought by the subpoenas to CEF, IPA and Mr Joyce with the records of HPPL that Bianca seeks to inspect, it is submitted that documents within the possession of HPPL that refer to donations made to CEF, IPA and Joyce are “likely to be of a different order and nature to documents created by the recipients of donations”.
Fourth, it is submitted that even if there were significant overlap between the subject matter of the documents sought in the s 247A application and the subject matter of the different documents sought by the subpoenas, that would not of itself make the subpoenas abusive or an improper substitute for the s 247A application (cf Rinehart v Rinehart [2015] NSWSC 205 at [18]-[19], [26]-[27]). In the present case it is submitted that the degree of overlap of subject matter is not so extensive as to suggest that the subpoenas are an abuse of process; in that the subpoenas seek documents in relation to donations to a few specific entities whereas the documents sought in Category 4, and the wider s 247A application, are of broader compass.
It is submitted that this is not a case such as that in Yes Family Ltd v Sphere Healthcare Pty Ltd, in which the subpoenaed documents would not have advanced the interlocutory application at all and would have made the interlocutory application otiose. Insofar as CEF points to the final nature of s 247A relief as distinguishing the present case from the 2015 Rinehart case referred to above, which dealt with a preliminary discovery application, Bianca argues that preliminary discovery and s 247A applications are final in precisely the same way: namely, that they do not effect substantive rights but they nonetheless finally dispose of a statutory right to obtain documents (referring by way of contrast to Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 at [40]).
As to the submission that the subpoenas are inconsistent with Practice Note SC Eq 11, Bianca argues as follows.
First, that none of the cases relied upon by Gina or CEF in their respective submissions (see the cases referred to in footnote 13 of CEF’s submissions and in footnote 8 to Gina’s submissions) have held that SC Eq 11 applies, in terms, to subpoenas. Rather, it is said that those cases, at their highest, are authority for the proposition that the Court is able to set aside a subpoena if satisfied that the subpoenas are issued in an attempt to circumvent the requirements of the practice note.
It is submitted that there is no valid basis for concluding that the subpoenas have been issued in an attempt to avoid the practice note: the subpoenas having been issued to third parties (not parties to the litigation), after the listing of the s 247A application for final hearing and for the purpose of assisting the plaintiff at that hearing, in what is said to be an entirely orthodox exercise of the Court’s ancillary powers to obtain material that it is “on the cards” will produce relevant evidence that can be used by the Court to quell the controversy before it.
Second, it is submitted that each of the substantive requirements of the practice note is met in the present case in any event: that disclosure not occur before evidence has been served (all evidence in chief having already been served by all parties in respect of the s 247A application); and that disclosure only occur if it is necessary (in the sense of what is reasonably required for a fair trial) for the resolution of the real issues in dispute in the proceedings (see In the matter of Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 at [20]ff). It is submitted that the practice note does not modify the established principles against which subpoenas are assessed (so as to require the plaintiff in this case to do more than show apparent relevance), referring by way of example to what was said in The Owners - Strata Plan No 76902 v Roads and Maritime Services at [16]-[21].
It is submitted that the statement of McDougall J in New Price Retail Pty Ltd v Hanna (at [19]) to the effect that “very similar” circumstances now attend the issuing of subpoenas was a reference to the requirement in paragraph 4 of the practice note regarding the timing of disclosure, not the requirement in paragraph 5 of the practice note setting out the test for disclosure (see New Price Retail Services Pty Ltd v Hanna at [18]-[19].)
Bianca submits that the subpoenas the subject of the present applications are relevant to the case she wishes to mount at the hearing of the s 247A application and that the documents sought are reasonably required for a fair trial.
As to the submission by CEF that the subpoenas are an impermissible substitute for preliminary discovery, Bianca points to the fact that the statement of claim commencing these proceedings was filed on 21 March 2017, after judicial advice was obtained as to the commencement of the proceedings, and sought, inter alia, relief pursuant to s 247A. It is noted that no defendant to the proceeding has sought to strike out the statement of claim on the basis that the facts pleaded do not found the relief sought or on the basis that it has no reasonable prospects of success. In these circumstances, it is submitted that there is no basis for concluding that the subpoenas ought be set aside on the basis that it was incumbent on the plaintiff to seek the documents by way of preliminary discovery before the proceedings were commenced.
For Bianca it is submitted that there are two additional reasons why the IPA subpoena should not be set aside.
First, because the only party seeking to set it aside or seeking an order that Bianca not have access to the documents produced (being Gina) has acted inconsistently with the grant of such relief and cannot now renounce her election between inconsistent rights. In this regard, it is contended that Gina elected not to seek to set aside the IPA subpoena until after she had had access to the documents and, in so doing, had gained advantages for herself that she would not have gained had she applied sooner. It is submitted that it is inconsistent with that election for her, having gained that advantage, to seek to set aside the subpoena or prevent Bianca having the same access.
Bianca notes that Gina was served with the IPA subpoena on 13 April 2018 and documents were produced on or about 25 May 2018 (Mr Price’s affidavit sworn 13 June 2018 at [21.1]); first access to the produced documents was granted to the defendants, at HPPL’s request, until 6 June 2018 (Price’s affidavit sworn 13 June 2018 at [21.2]); during that initial period of first access, Gina’s solicitors reviewed the documents produced by IPA (see Mr Price’s affidavit sworn 13 June 2018 at [21.7]; Exhibit C, p 86); and a further period of first access was granted at the request of Gina, and over the objection of Bianca, in order to enable Counsel for Gina to review the documents (Exhibit C, pp 76-77, 84, 86, 87). Thus it is submitted that Gina’s solicitors had already accessed the documents, and had sought continued first access, despite asserting that the subpoena was an abuse of process on its face (Exhibit C p 85; 7/6/18, T 3.6-22) and had a notice of motion ready to set it aside that could be filed in Court (Exhibit C p 87; 7/6/18, T5.22-24).
Second, Bianca submits that once the documents have been produced, Gina’s arguments as to “necessity’’ have little relevance. Reference is made to the observation of Ball J in Strata Plan No 76902 v Roads and Maritime Services (at [19]) that once the documents have been produced, it is difficult to see why access would be denied due to an asserted lack of necessity, because the purpose of the ‘necessity’ criterion is the reduction of costs, and after production has occurred there are no more costs to reduce.
As to the criticism made by Gina and CEF, respectively, as to the width of the subpoena categories, Bianca responds as follows.
First, as to the IPA subpoena, Bianca emphasises that IPA did not apply to set aside the subpoenas. It is submitted that it can be inferred from this that IPA did not consider the categories to be unduly broad. It is submitted that it is on the cards that each of the categories in the IPA subpoena would produce documents that would throw light on the circumstances surrounding donations by HPPL to IPA and the purposes for those payments.
As to the criticism made by Gina of the scope of categories 4 and 6 of the IPA subpoena, it is submitted that these categories are unobjectionable because it is on the cards that they will produce documents demonstrating that Gina, and not HPPL, is receiving credit from donations made by HPPL and in that way will assist in establishing the case for investigation. As to category 5, it is submitted that this is unobjectionable because, given IPA’s failures to answer Bianca’s inquires of it, it is on the cards that the category will produce documents that assist the case for investigation by showing that Gina and IPA had discussed IPA’s response to Bianca’s questions.
It is submitted that since IPA has already produced documents (“because of Gina’s delay in bringing her application to set aside the subpoena”), it would be an odd and wasteful outcome if the effect of Gina’s belated application to set it aside were to be that IPA was required to carry out the subpoena production exercise again in respect of narrower categories of documents.
Second, as to the CEF subpoena, it is submitted that Bianca should not be criticised for drafting the subpoena broadly “in circumstances where even the most rudimentary questions about what CEF does are not being answered”. It is submitted that this is not an ordinary situation in which Bianca could be expected to have a reasonable idea of the kinds of documents and records CEF might have and be able to craft categories accordingly.
Categories 2-4 are said to be unobjectionable on the same basis as the corresponding categories in the IPA subpoena – i.e. because it is on the cards that they will produce documents that throw light on the circumstances surrounding donations to CEF and the purposes for those payments. As to category 2, the criticism made of the use of the verb “referring to” is said to be inconsistent with authority (reference being made to Ritchie’s Uniform Civil Procedure at [33.4.25] and the cases referred to therein). As to category 3, it is said that the answer to CEF’s submission is that HPPL will not say what the purposes are and the fact that HPPL would be able to explain the purposes of the donations is not a reason to set aside a subpoena to a different party seeking documents that might explain the purposes of the payments. (It is noted that CEF does not expressly resist category 4.)
As to category 5, this is said to be unobjectionable because “given CEF’s failures to answer Bianca’s inquiries, and CEF’s cryptic statement that disclosure of donations to it might be detrimental to its ability to attract donations”, it is on the cards that the category will produce documents that assist the case for investigation by showing that Gina and CEF had discussed CEF’s response to Bianca’s questions. Insofar as CEF resists category 5 on the basis that if the documents existed they would form part of the books and records of HPPL, Bianca argues that this is misconceived because the documents sought in the subpoena are only those in the possession, custody or control of CEF.
As to the Joyce subpoena, Bianca argues that categories 2.2-2.3 and 2.3(a) are unobjectionable because it is on the cards that they will produce documents that throw light on the circumstances surrounding any donations to Mr Joyce or associated persons, the $40,000 prize awarded to Joyce, and the purposes of those donations and the prize.
Finally, as to the submission by HPPL that no further production should occur, and no further access should be given, in respect of any of the subpoenas until after, at least, the stay application has been argued, Bianca argues that this should be rejected. It is submitted that, the s 247A application having been listed for hearing commencing on 27 August 2018, Bianca is entitled to use the ordinary document production processes of the Court to assist her in succeeding in her application and that for her not to be permitted to do so would not afford procedural fairness to her. For the same reason, it is argued that Gina’s submission that it is inappropriate for subpoenas to be issued whilst HPPL’s stay application is extant should be rejected. It is submitted that there are significant practical difficulties in holding back documents until after the hearing of, at least, the stay application, including that Bianca would then have either no, or insufficient, time to consider the documents before mounting her s 247A application.
As to HPPL’s alternative submission that, pending hearing of the s 247A application, there should be a confidentiality order in respect of documents produced consistent with that said to be required by the Hope Downs Deed, Bianca argues that this should also be rejected. It is submitted that the documents produced will be subject to the implied undertaking and will be provided to a trustee; and that the implied undertaking, and the consequent risk of contempt, is sufficient to protect the confidentiality of the documents. It is submitted that if the documents are ultimately sought to be tendered at the hearing, confidentiality orders could be sought at that time. (Bianca stated she would agree that she would not rely on the fact that she has had access to subpoenaed documents prior to the hearing of the s 247A application as a ground for resisting HPPL’s stay application.)

Determination

In the context of the applications to set aside the subpoenas issued by Bianca, the first issue to which I will turn is whether it has been established that there is a legitimate forensic purpose to the respective subpoenas.
The legitimate forensic purpose must be one relating to the issues that will be raised at the s 247A hearing (not the issues raised in the substantive proceedings). It is abundantly clear that what will be in issue on that application is whether, objectively ascertained, the application by Bianca for access to the books of HPPL is made in good faith and for a proper purpose (i.e., at least in relation to the category 4 documents, to investigate Bianca’s suspicion as to breach of directors’ duties by misuse of corporate funds).
Documents of the kind sought by the subpoenas could not be expected to shed light on whether the s 247A application is made by Bianca acting in good faith if that were to be considered in isolation. Whether or not her suspicions prove to be well-founded as to the circumstances in which particular sponsorships or donations were provided or paid could shed no light whatsoever on her motivation for making this application. However, as made clear in Mesa Minerals, the threshold requirement is a composite one.
If the documents in question are sought in order to prove or make good the claim that there is a case for investigation as to whether there has been a breach of directors’ duties by the making of the donations or provision of the sponsorships, then I would be inclined to the view that the subpoenas were no more than a fishing expedition. I would not go so far as to say that before a legitimate forensic purpose can be established it would be necessary for Bianca to demonstrate that there is a prima facie case for the grant of relief under s 247A or that there is a reasonable basis for the grant of such relief. That seems to me to require a conclusion to be made (albeit on a prima facie or preliminary basis) as to the merits of an application that is yet to be heard. Rather, it seems to me that if there is a reasonable basis (beyond mere speculation) to believe that the subpoena recipients have in their possession documents that it is likely will materially assist (to adopt the language of Nicholas J in ICAP Pty Ltd v Moebes) the determination of the issue as to whether the application by Bianca for access to the books of HPPL is brought in good faith and for a proper purpose, and/or as to the issue as to whether, if the threshold requirement is met, the discretion to grant access should be exercised, then that would in my view be sufficient to amount to a legitimate forensic purpose for the issue of the subpoenas.
The relevant purpose for which access is sought to the books of HPPL identified in category 4 of the 6 March 2018 letter, as noted above, has been identified as being to assist in determining whether there has been, or has arguably been, a breach of directors’ duties by reason of the misuse of corporate funds. The argument for Bianca, as I apprehend it, is that such an inference is already available on the (albeit limited) information known to her to date: as to IPA, that the donation was treated in the annual report as a donation by an individual, not by the company in whose books the donation was recorded – a connection being apparently sought to be drawn between this and the fact that Gina has been made an honorary life member; as to CEF, that substantial sums were donated for the purposes of a trust, the purposes of which are unknown and have not been identified by HPPL; as to Mr Joyce, that a prize in the form of a monetary sum was awarded to him and that HPPL expended (or may have expended) sums on the holding of the industry day at which the prize was awarded, in circumstances which HPPL has declined to explain to Bianca.
However, the inference that any of those amounts was a misuse of corporate funds seems to be one based largely on conjecture – Bianca’s submissions being exacerbated by her dissatisfaction with the nature of the information provided by HPPL in response to queries as to those matters. (I pause here to observe that it is difficult to see how any inference could be drawn, as to the purposes for which HPPL made those donations, from the refusal of donation recipients to answer questions about the donations – since the recipients have no obligation to do so.) And it seems to me to be a matter of pure speculation as to whether there had been any communication at all between Gina or any HPPL related entity and the recipients of the subpoenas as to the subpoenas themselves or the requests for information made by Bianca (and I cannot see the relevance of any such communication, even if there had been some such communication, to the issues arising on the s 247A application).
If limited to documents that it is reasonably likely would establish the fact of what I have referred to as the making of the impugned payments (including the actual individual or entity by whom they were made and in what amounts at what times, say) the subpoenas would in my view be supported by a legitimate forensic purpose (and this was in effect conceded by Mr Bova, although he maintains that they are, in that event, not necessary as Bianca has already been provided with that information – a submission not accepted by Bianca at least in relation to some of the information she has sought). Similarly, insofar as the CEF subpoena seeks documentation recording the terms of the CEF Trust, I consider that a legitimate forensic purpose has been established in that any such documentation is likely materially to assist in determining the strength of the case for investigation of any breach of directors’ duties in the making of any such payment (and hence would go to the discretion whether to grant the relief sought).
In contradistinction, a subpoena seeking to establish, from documents in the hands of the recipients, the purpose of the donor in making those payments seems to me to be quite another matter. It seems to me to be no more than speculation to suggest that documents in the hands of subpoena recipients (the donees or intended donee, in the case of Mr Joyce) would shed light on (or materially assist Bianca to determine) HPPL’s purpose in making the donations or payments in question. And, as already adverted to, the documents sought as to any communications between Gina or any person on her behalf and the subpoena recipients in relation to the subpoena or the responses to requests for information (and, a fortiori, in IPA’s case, as between HPPL or any HPPL related party and IPA in relation to the preparation of the 2017 Annual Report or, in the case of Mr Joyce, as to the litigation or disputes between the family members) do not appear to me to have any relevance to the issue to be determined on the s 247A application and thus cannot be for a legitimate forensic purpose.
Thus, while I accept that there may be a legitimate forensic purpose in seeking some documentation in relation to the impugned payments, I consider that the ambit of the documents sought by each of the subpoenas goes well beyond that purpose. Moreover, the argument that material produced in answer to the subpoenas calling for the “purpose” or “terms” of the payments might strengthen the case for investigation into the making of the payments by HPPL and therefore go to the question of discretion (the second purpose articulated as supporting the subpoenas) is problematic in circumstances where it is mere speculation that there is any material that would be likely to do so.
Having regard to the breadth of a number of the categories of documents that have been sought, particularly in relation to the Joyce subpoena (not the least of which being category [3], though it is not confined to this), it is difficult not to conclude that there are aspects of each of the subpoenas that are no more than a fishing expedition.
As to the argument that the subpoenas were issued in breach of, or are inconsistent with, the relevant Practice Note or should not be allowed (applying the test of necessity), it is relevant to note the particular content of the Practice Note, which was issued in March 2012 (and thus was not considered in various of the earlier authorities to which reference was made):

4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.

6. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out:

the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;

the classes of documents in respect of which disclosure is sought and

the likely cost of such disclosure

I accept that a subpoena may be set aside if it involves an attempt to subvert the operation of the Practice Note by seeking what is in substance disclosure within the scope of the Practice Note. However, in the present case, the evidence to be relied upon by Bianca on the s 247A application has already been served. The operation of paragraph 4 of the Practice Note would not be subverted by requiring compliance with these subpoenas.
As to paragraph 5 of the Practice Note, insofar as there is a legitimate forensic purpose for the production of the documents that entails a conclusion that the documents sought to be produced are likely to be relevant to the determination of identified issues in the proceedings. I accept that relevance to an issue in the proceedings may not itself lead to the conclusion that the documents in question are “necessary” for the resolution of that issue but it seems difficult to resist the conclusion that (particularly if, as here, the documents may well only be available from the subpoena recipients – such as the CEF Trust documents or the records of receipt of payments in the hands of recipients of donations/scholarship funds) the documents would reasonably be required for a fair trial of the relevant issue.
In any event, it is not necessary to come to a concluded view on this issue (nor do I propose to accede to the invitation of Mr Bova to make a policy statement in general on this topic in the context of this particular case) in light of the conclusion I have reached as to the ambit of much of the subpoenas amounting in large part to a fishing expedition.
As to the other complaints made, I am not persuaded that the subpoenas are an attempt to circumvent the procedures for discovery or preliminary discovery (largely for the reasons submitted by Mr Thomas) and I do not find them to be an abuse of process in that regard. The fact that documents covering the same subject matter may be obtained under the subpoenas as might ultimately the subject of access orders following the hearing of the s 247A application does not persuade me otherwise. I agree with the observations of Darke J in Rinehart v Rinehart [2015] NSWSC 205 at [18]-[19] in that regard:

It follows from the observations made by Hely J in Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (supra), referred to earlier, and from what McCallum J said in the slightly different context in Liu v The Age Company Ltd (supra) [[2011] NSWSC 53 at [12] and [13]], that the mere fact that there is some overlap between what is sought on preliminary discovery and what is sought by subpoena does not mean that the subpoena is necessarily an abuse of process. It is necessary to look at the scope and purpose of the particular subpoena in the context in which it has been issued.

I readily accept that there is scope for abuse of the preliminary discovery process through the issuing of notices to produce or subpoenas that seek documents of a type that are the subject of the discovery application. It is a matter about which the Court must be mindful. I further accept that preliminary discovery is an intrusive process insofar as the prospective defendants are concerned and that they are, subject to their general obligations under the Civil Procedure Act 2005 (NSW), entitled to require an applicant to establish all of the prerequisites to the making of an order. Nevertheless, even allowing that the test under UCPR r 5.3(1 )(a) that an applicant be a person entitled to make a claim for relief is not particularly stringent, an applicant faced with an argument that its foreshadowed claims are merely speculative ought generally be able to make use of interlocutory procedures to assist it to satisfy that test.

I do, however, consider that the subpoenas are impermissibly wide in breadth, for reasons to which I have already adverted. As to this, I have reached the following conclusions in relation to the particular subpoenas.
First, as to the CEF subpoena, I have concluded as follows.
Paragraph 2 seeks documents not simply recording the receipt of payments but referring to such payments and extends to payments by or on behalf of any HPPL Related Party (as defined) and to any CEF Related Party (as defined). In oral argument, Mr Thomas accepted that it might be read down to be limited to payments by HPPL or its subsidiaries. As to the criticism of the use of the expression “referring to”, I accept that this is not as broad or general as “relating to”, and would not necessarily cause difficulty for the subpoena recipient in determining on the face of a particular document whether it fell within the ambit of the subpoena. However, it remains an expression of some breadth. It would, for example, catch a (presumably on any view innocuous) communication in which reference is made to the fact of the donation without more.
Paragraph 3 (impermissibly in my opinion) seeks documents recording the “purpose” (i.e., HPPL’s purpose, or that of the payer if it not be HPPL) or “terms” of the payments. It is mere speculation that any such documents exist. It appears to proceed on an assumption that sponsorship or donation payments might be impressed with some sort of condition as to the use to which the payments be put, or be part of some kind of arrangement in which terms of the payment are specified. That does seem to me to verge on being an application akin to preliminary discovery.
Paragraph 4 seeks the terms of the CEF Trust. If limited to the trust deed or any variation thereto that was operative or extant during the relevant period, that would seem to me not to be too broad and of potential relevance to the enquiry as to the threshold requirement for the relief Bianca is seeking in her s 247A application.
Paragraph 5 does not in my view go to any legitimate forensic purpose in the context of the s 247A application, for the reasons set out earlier.
Therefore, if the CEF subpoena were to be read down to relate only to records of payments or donations made by HPPL or its subsidiaries to CEF, as trustee for the CEF Trust, over the relevant period and a copy of the CEF Trust Deed and any variation thereof during the period specified in paragraph 3, I would allow the subpoena. Otherwise the subpoena is to be set aside.
Second, as to the IPA subpoena, for similar reasons (and subject to the practical import of such an order, to which I refer below) I would allow paragraph 2 if read down to documents recording payment or donation of moneys made by HPPL or any subsidiary for the two financial years ended 30 June 2016 and 2017; I would otherwise set aside paragraphs 3-6.
The qualification to which I have adverted (at [142] above) above relates to my concern that such an outcome would lead to the incurring of unnecessary expense and duplication of time and effort and would be inconsistent with s 56 of the Civil Procedure Act. As I explained when the matter was first listed by me for judgment on 13 July 2018, my concern in relation to allowing the IPA subpoena to stand in relation to paragraph 2 (albeit read down to the specified years and the specified payers) was the submission that had been made by Mr Bova, in the course of the hearing of the applications, to the effect that, since there had already been production of documents (some 1,800 or so pages) in answer to this subpoena, if I were to accept that there were not a legitimate forensic purpose for part of the subpoena then the whole subpoena should now be set aside (and a fresh subpoena be issued if Bianca wished to press for the limited category of documents of the kind that I had indicated I might allow). As I discussed with Counsel when the matter was initially listed for judgment on 13 July 2018, I was of the view that this would involve the incurring of additional expense (at the very least by IPA) and would not be consistent with the mandate imposed by the Civil Procedure Act 2005 (NSW) as to the just, quick and cheap resolution of the real issues in dispute in the litigation.
Moreover, I had understood that there was a complaint by Bianca as to a lack of procedural fairness if such a course were to be adopted since the IPA documents had already been inspected by Gina’s legal representatives. This was clarified in the course of debate on 13 July 2018 as being the submission for Bianca that Gina had in effect elected not to seek to set aside the subpoena at a time when it was said by her legal representatives to be plainly an abuse of process and her legal representatives had then proceeded to inspect the material.
I am not persuaded that the principles relating to an election between inconsistent rights have any real role to play in the present circumstances. Inspection of the documents, as part of the ordinary course of litigation, is equally consistent with a course of preserving the right to object to access being granted but taking steps in order to form a view as to whether the time and expense of such an application should be incurred. In other words (however unlikely in the context of the ongoing litigious saga in which this family, and its associated entities, appears to be embroiled), it is possible that following inspection of the documents a forensic decision would have been made not to seek to set aside the IPA subpoena even though it was perceived prior to inspection (and perhaps even still afterwards) to be an abuse of process.
In any event, the potential prejudice identified by Mr Gaffney (counsel appearing for Bianca on 13 July 2018) was that, the defendants having already inspected the IPA documents, the defendants might later seek to deploy them against Bianca on the s 247A application in circumstances where she had not had the opportunity to inspect the documents herself. As I made clear, were that to occur a complaint by Bianca as to such an ambush would be likely to meet with little resistance from me at the s 247A hearing. However, other than such an apprehension, no particular prejudice arising from inspection having taken place by one or more of the defendants of the relevant documents was identified.
On balance, and having reflected further on the matter, I consider that the IPA subpoena should not be allowed to stand in its current terms. I am comfortably persuaded that it is for the main part no more than a fishing expedition. In the course of debate on 13 July 2018 a regime acceptable to the parties (though not of course Bianca’s preferred position) was identified by which the subpoena could be confined to what I consider to be a proper ambit (but whereby unnecessary cost and expense of re-doing the subpoena process would be avoided). That regime involved the inspection of the IPA documents by my tipstaff in order to “winnow out” those documents covered by the subpoena (if confined to the scope I consider permissible) and for the balance of the documents to be returned to IPA. My tipstaff is in the process of so doing.
As to the Joyce subpoena, I will set it aside as a whole. The only document produced by Mr Joyce is one that does not fall within its terms. The only paragraph I would have been minded to allow is paragraph 2.3 and its relevance to any issue is moot. For the avoidance of doubt, I make no finding as to any improper motivation in the issue of this subpoena.
I am inclined to think, with one qualification, that costs should be reserved until after the hearing of the s 247A application. That qualification is that I consider that CEF should have its costs of successfully setting aside the bulk of the subpoena served on it.
I have not addressed in detail in these reasons the argument that the IPA subpoena has been discharged – suffice to say I accept the argument put forward by Mr Bova in this regard. In essence, he points to the recognition in Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 595 Byrne J) that there are a number of steps involved in relation to the issuing of a subpoena and that if the subpoena ought to have been set aside the discretion can still be exercised to refuse access to inspect the documents produced in compliance with the subpoena.
Similarly, I have not addressed in any detail the reasons for the confidentiality regime sought by HPPL. I accept the submissions put forward by Mr Giles SC (for HPPL) in this regard and would impose a confidentiality regime in respect of so much of the subpoenaed documents as are now required to be produced. I accept that Bianca is seeking the documents in her capacity as trustee for the HMH Trust and would be bound by the implied undertaking. However, the history of dispute between the respective parties (and the evident suspicion on both sides of the motives of the other) makes me lean towards putting in place a formal confidentiality regime. This is particularly so where the issues raised by HPPL/Gina’s stay applications have not yet been determined. However, I do not consider it appropriate to accede to the application that there be no access at all until after the stay applications have been determined as that is likely to cause practical difficulties for the hearing of the only interlocutory application presently listed – that being the s 247A application in aid of which the subpoena documents have been sought.

Conclusion

For the above reasons, I make the following orders:

Set aside the subpoena issued by the plaintiff on 10 April 2018 to the Institute of Public Affairs except insofar as it compels the production of documents created or received between 1 July 2015 and 30 June 2017 recording any payment or donation of money made by the second defendant (HPPL) or any of its subsidiaries to the Institute of Public Affairs.
Direct that documents produced by the Institute of Public Affairs other than those falling within the subpoena addressed to it, as confined by order 1 above, be returned to the Institute of Public Affairs.
Set aside the subpoena issued by the plaintiff on 10 April 2018 to CEF Pty Ltd, except insofar as it compels the production of documents created or received between 10 July 2014 to date recording any payment or donation of money made by HPPL or any of its subsidiaries and the production of a copy of any trust deed or document establishing the CEF Trust or variation thereof, as operative or extant during the period from 10 July 2014 to 30 June 2017.
Extend the time for compliance by CEF Pty Ltd with the subpoena addressed to it, as confined by order 3 above, for a period from 14 days from the date of these orders and list the matter in the subpoena list on 31 July 2018 for that purpose.
Set aside the subpoena issued by the plaintiff on 12 June 2018 to Senator Barnaby Joyce MP and direct the return to him of the document produced in answer to that subpoena.
Order the plaintiff to pay the costs of CEF Pty Limited of its application to set aside the subpoena to it.
Otherwise reserve the question of costs.
Make orders in accordance with the Short Minutes of Order handed up by Senior Counsel for HPPL on 6 July 2018 as amended by me and initialled on 13 July 2018.

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Amendments

17 September 2018 - Amendment to Representation

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Decision last updated: 17 September 2018