FEDERAL COURT OF AUSTRALIA

Harvard Nominees Pty Ltd v Tiller [2019] FCA 1672

ORDERS

THE COURT ORDERS THAT:

1.    The applicant file and serve any minutes of proposed amended subpoenas by 4.00 pm on Friday 11 October 2019.

2.    The interlocutory hearing is adjourned to 10.15 am on Thursday 17 October 2019.

3.    The costs of the respondents' interlocutory application dated 1 October 2019 are reserved to the adjourned hearing.

4.    Until further order, the parties may not inspect any documents that have been provided to the Court in response to any of the six subpoenas that are to be set aside.

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

REASONS FOR JUDGMENT

JACKSON J:

1    These reasons concern an application by the respondents to set aside seven subpoenas to produce documents which the court issued on the application of the applicant, Harvard Nominees Pty Ltd (Harvard).

Principles on application to set aside subpoenas

2    Rule 24.15 of the Federal Court Rules 2011 (Cth) provides that the court may, on the application by a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in relation to it.

3    The rule does not set out any criteria to guide the exercise of the court's discretion. Le Miere J's summary of the principles in Marshall v Smith [2013] WASC 432 at [11] is a useful starting point:

A subpoena may be set aside if it is not for a legitimate forensic purpose. As a general rule, whether or not it is for a legitimate forensic purpose will be determined by reference to the pleadings. A party seeking to obtain documents by subpoena must be able to show some connection between the documents sought by the subpoena and the issues raised in the proceedings.

This was said in the context of a subpoena for the purposes of establishing a plea of justification in a defamation case, but it is of general application.

4    The connection between the documents sought in the subpoena and the issues on the pleadings may be sufficient if it is 'on the cards' that the documents will materially assist the applicant: Alister v The Queen (1984) 154 CLR 404 at 414 (Gibbs CJ). However in Alister that phrase was used in a context where the liberty of the subject was at stake. The test has been put less colloquially as one of 'apparent relevance' or whether the documents sought are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': see Seven Network Ltd v News Ltd (No 5) [2005] FCA 510; (2005) 216 ALR 147 at [10] and the cases cited there. This requires more than 'mere relevance', but is not at the level required for admissibility into evidence: Central Innovation Pty Ltd v Garner [2019] FCA 461 at [9] (Bromwich J).

5    In Sklavos v Australasian College of Dermatologists [2014] FCA 476 at [6], Jagot J expressed the test as follows:

This expression of the principle [from R v Barton [1981] 2 NSWLR 414 at 419-420], '[i]f it appears an issue may arise in litigation to which the documents may relate', is the test of apparent relevance routinely applied in order to determine whether a subpoena has been issued for a legitimate forensic purpose. However, if the potential relevance is dependent upon 'an unreal, fanciful or speculative' view, the principle will not be satisfied and the subpoena may be set aside.

6    Also of general application are the following dicta of Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575:

In the absence of special circumstances e.g. Griebart v Morris [[1920] 1 KB 659], a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories for the purpose of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: Hennessy v Wright [24 QBD 445 at 448], or to discover the nature of the other side's evidence: Griebart v Morris [at 666]. Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears they are not sufficiently relevant: Steele v Savory [[1891] WN 195].

7    The respondents raise a number of grounds as to why the subpoenas should be set aside. In their written submissions, their main complaint was that the subpoenas seek documents that are not relevant to the issues on the pleadings, properly analysed, or to the extent that they are relevant to any issues, they are disproportionate to the importance of those issues. In oral submissions the emphasis was more on the breadth of the subpoenas, particularly by reference to the number of entities whose affairs were potentially connected with the documents sought, and the nature of those entities. As will be seen, these entities are defined in all but one of the subpoenas as 'Entities of Interest'.

8    In order to determine whether the subpoenas should be set aside, therefore, it is necessary to identify any issues in the proceedings to which the documents sought may be relevant, the nature of those documents, and the extent to which the documents may be relevant to those issues. It will be important to assess those matters in light of the points raised about the Entities of Interest.

The issues in the proceedings

9    The allegations in the statement of claim can be summarised as follows. The applicant, Harvard Nominees, was the registered proprietor of farming land near Esperance, Western Australia, known as Warriup Farm. Mr John Caratti is a director of Harvard. Harvard, Mr Caratti and his brother, Allen, leased Warriup Farm and adjacent land known as Howick Farm (the Farms) to the third respondent, Giovanni Nicoletti, and his wife. Interests associated with John Caratti also had a history of leasing other farming land to the Nicolettis. Harvard claims that disputes about those leases arose, with the result that John Caratti did not want to deal with Mr Nicoletti again. In 2016 the Farms were (via a sub-lease) effectively leased to the first and fifth respondents, Simon and Felicity Tiller.

10    Harvard claims that on or about 31 January 2019, Mr Tiller told John Caratti that he (Mr Tiller) had formed a new company, being the second respondent Dimension Agriculture Pty Ltd (Dimension), and he wanted to surrender the lease of the Farms to him and Mrs Tiller, to be replaced with a lease of the Farms to him and Dimension. It is alleged that Mr Tiller said that, because the latest season had seen a bumper crop and good market prices for grain, he would be able to pay off certain alleged arrears in return for the surrender and new leasing arrangements. There is no plea that this alleged representation was misleading.

11    Harvard further alleges that later on the same day, John Caratti obtained a company extract of Dimension which showed Mr Tiller and the fourth respondent, Damian Bryce, as directors, and showed that Mr Bryce held the only issued share in Dimension. Harvard alleges that Mr Tiller then (also on 31 January 2019) had a telephone conversation with John Caratti in which Mr Tiller said:

(1)    Mr Bryce had been referred to him by Mr Nicoletti;

(2)    Mr Bryce was a director of Dimension because he was to assist Mr Tiller by taking over all of the work that Mrs Tiller had previously undertaken;

(3)    Mr Bryce held the share in Dimension beneficially for Mr Tiller;

(4)    other than the referral of Mr Bryce, Mr Nicoletti had no and would not have any involvement in Dimension; and

(5)    Mr Nicoletti would not be involved in Dimension's activities on the Farms.

12    Harvard alleges that in reliance on the last four of these listed representations, it entered into various transactions, with the result that it leased the Farms to Mr Tiller and Dimension on 8 February 2019. It says that each of the four representations was false. One of the things said to falsify the representations is a conversation between John Caratti and Mr Nicoletti on 21 March 2019, in which Mr Nicoletti is alleged to have said that he owned and had been and would be involved in Dimension, and that he was taking over the operations of the Farms because Mr Tiller owed him a lot of money.

13    Harvard claims that it has rescinded the new lease of the Farms. It seeks orders declaring the lease to be void or for the termination of the lease and an order that vacant possession be delivered up. It also seeks damages for misleading or deceptive conduct.

14    The defence filed by the respondents pleads the background of the relationship between the Carattis, the Nicolettis and the Tillers in respect of the Farms in some detail, and in a manner that differs from the account given in the statement of claim. It is not necessary to go into the differences here.

15    There are also detailed pleas in the defence as to alleged conversations between Mr Tiller and John Caratti in January 2019. These differ from the pleas in the statement of claim concerning the alleged conversations and other events on 31 January 2019. Once again, it is not necessary to go into the detail of all the differences. One important difference is that the respondents claim that Mr Tiller disclosed to Mr Caratti that he (Mr Tiller) was talking to Mr Nicoletti about being a financial backer for the farming business through a corporate entity. The defence also claims that when Mr Caratti asked Mr Tiller who was behind Dimension, he said it was none of Mr Caratti's business, and Mr Caratti said he did not care who was behind it as long as certain alleged arrears were paid. The respondents claim that Harvard was aware of Mr Nicoletti's involvement with Dimension and with the Farms.

16    The respondents deny the making of the representations on which Harvard says it relied and say that, even if they were made, Harvard did not rely on them. They also deny the making of the earlier representation that there had been a bumper crop and good market prices, so that Mr Tiller would be able to pay off all outstanding arrears and debts.

17    The respondents deny each of the pleas in the statement of claim that the representations are false. That includes denying the conversation between John Caratti and Mr Nicoletti on 21 March 2019 concerning Mr Nicoletti's involvement in Dimension and the Farms. The respondents also make some additional pleas concerning those allegations, one of which is that in late March 2019, John Caratti acknowledged Mr Nicoletti's involvement with Dimension and with the Farms.

18    The respondents also claim that John Caratti engaged in misleading or deceptive conduct which disentitles Harvard to relief in that, broadly speaking, he implicitly represented that he would allow the previous leases to be assigned to Mr Tiller and Dimension without caring who was backing them, when that was not the case.

19    Harvard has filed a brief reply which relies on a 'no reliance on representations' clause in a deed of assignment of one of the leases to Dimension.

20    So, for present purposes, it is relevant to note that the following matters are in issue on the face of the pleadings:

(1)    Did Mr Tiller tell John Caratti that because the latest season had seen a bumper crop and good market prices, he would be able to pay off all outstanding arrears and debts in return for the surrender and new leasing arrangements? The truth or falsity of this statement is not in issue.

(2)    Did Mr Tiller tell Mr Caratti that Mr Nicoletti had no and would not have any involvement in Dimension, and would not be involved in Dimension's activities on the Farms?

(3)    Did Mr Nicoletti tell Mr Caratti that he owned and had been and would be involved in Dimension, and that he was taking over the operations of the Farms because Mr Tiller owed him a lot of money? Given that Harvard is relying on this in order to falsify the alleged representations about Mr Nicoletti's lack of involvement, Harvard implicitly avers the truth of Mr Nicoletti's alleged statement.

The parties' submissions

21    It is necessary to have regard to the specific terms of each subpoena to answer the question of whether it was issued for a legitimate forensic purpose. However before doing so it is convenient to summarise the submissions of the parties, which were couched in more general terms. It is also convenient to start with the submissions of Harvard, as it is the party which proffers what it says are legitimate forensic purposes for the subpoenas.

22    Broadly, Harvard submits that the purpose of the subpoenas is to elicit evidence of two related matters: the financial position of the Tillers at the time of the alleged conversations between Mr Tiller and John Caratti, and the involvement of Mr Nicoletti in Dimension and the Farms at that time. The matters are related because the main reason why, it is said, the financial position of the Tillers is relevant, is that it goes to explain and provide a motive for the involvement of Mr Nicoletti in Dimension and the Farms. If Mr Tiller was in financial trouble, that provides an explanation for Mr Nicoletti's involvement in the Farms, which in turn increases the probability that he was in fact involved at the time of the alleged representations by Mr Tiller.

23    Harvard says that the subpoenas are likely to result in evidence about those matters and that evidence will be relevant to the pleaded issues in several ways. It is not necessary to detail all of them. Harvard's strongest point was that the evidence would go to the falsity of the impugned representations about Mr Nicoletti's involvement.

24    Harvard says that the subpoenas are limited in scope and as to time so that the respondents' contention that they are unduly wide is untenable.

25    As the submissions of the respondents evolved, their main point became that the subpoenas overreach, particularly in the way they seek to compel the production of material concerning the Entities of Interest. All but one of the subpoenas uses this defined term as one way of defining the scope of the documents sought. There are 23 such defined entities. On its face, that seems like a large number. But on closer inspection it quickly becomes apparent that the 23 entities are Mr Tiller and persons and entities associated with him, Dimension the second respondent, and Mr Nicoletti and entities which, according to evidence provided in support of the issue of the subpoenas, are associated with him.

26    Nevertheless, the respondents say that the evidence of any association between Mr Nicoletti and any of the entities is so weak that the court should not accept it. They also point out that there is no plea concerning any of the alleged Nicoletti entities. And they say that even if the association is accepted, the suggestion of any connection between those entities and the Farms is speculation.

27    The respondents submit that the issues in the proceedings are limited: were the impugned representations made; were they false; and if so should the new leases be set aside? They say that the subpoenas are unduly broad and disproportionate to those issues, and will embarrass the efficient and just resolution of the proceedings.

28    The respondents also criticise the bases that were advanced to justify the issue of the subpoenas. One of those was that the documents may show that Mr Tiller was in financial difficulty when he told John Caratti that he was not. The respondents say that the pleaded representation about a bumper crop and the ability to pay arrears falls short of being a representation about the financial position of the partnership formed by Mr and Mrs Tiller which operated the Farms. They point out that there is no plea about the truth or falsity of any statement about Mr Tiller's financial position. The respondents plead that Mr Tiller told John Caratti that he (Mr Tiller) was having financial problems, so it is a false issue anyway.

29    The second basis advanced for the issue of the subpoenas was that the material will go to the extent of Mr Nicoletti's involvement in Dimension and in the Farms. The respondents say that since it is common ground that Mr Nicoletti did become a director of Dimension, there is no issue as to the fact and extent of his involvement with that company. The only issue can be the extent of his involvement with the Farms. They also submit that the use of the term 'involve' in the statement of claim is vague and open ended so that the reliance on the plea including those terms to justify the subpoenas turns them into a fishing expedition.

The subpoenas

30    Against the background of those submissions it is necessary to turn to the specific terms of the subpoenas. The subpoenas which are in dispute were issued to the following entities, none of whom are parties to the litigation:

(a)    David Ross and Cameron Shaw (of Hall Chadwick (WA) Pty Ltd);

(b)    CNH Industrial Capital Australia Pty Ltd;

(c)    Co-Operative Bulk Handling Ltd;

(d)    National Australia Bank Limited;

(e)    Landmark Operations Ltd;

(f)    In Front Australian Business Solutions Pty Ltd; and

(g)    CBH Group Holdings Pty Ltd.

31    The subject matter of the documents sought in the subpoenas can be grouped and summarised as follows. After doing so I will state the conclusions I have reached about what legitimate forensic purpose, if any, the subpoenas serve. As will be seen, resolving the issues in relation to the first pair of subpoenas largely points to how the disputes about the others should be resolved.

Landmark Operations Ltd and the receivers

32    Landmark Operations Ltd is a provider of agricultural products, advice and finance. Two partners of Hall Chadwick were receivers over the assets of the partnership formed by Mr and Mrs Tiller, whom Landmark appointed in April 2019.

33    The subpoena to Landmark seeks materials between or concerning any of Landmark, Mr Tiller, Mr Nicoletti, Mr Bryce or the defined Entities of Interest. The subject matter of the materials sought concerns the farming operations at the Farms after 1 October 2018, lending arrangements in connection with the Farms after that date, security over any assets of the Farms or any Entities of Interest after that date, the appointment of Hall Chadwick as receivers, and any transaction giving effect to any sale or agistment of any assets on the Farms to Mr Nicoletti or any Entity of Interest.

34    The subpoena to the receivers overlaps with this, because it too seeks materials in connection with any transaction giving effect to the sale or agistment of assets on the Farms. But is not coextensive with it, because the receivers' subpoena also seeks materials in connection with Mr Tiller and any Entity of Interest in relation to the Farms after 1 November 2018.

35    It appears to be common ground that the issue of Mr Nicoletti's involvement with the Farms arises on the pleadings. Although the parties may differ in the precise way in which they each describe that issue, counsel for the respondents disavowed any submission that the fact that Mr Nicoletti was involved in the Farms was irrelevant. The issue arises most obviously because Harvard pleads that as at 31 January 2019, Mr Nicoletti had and would continue to have an involvement in Dimension, and at the time it was intended that he would be involved in Dimension's activities on the Farms, and those pleas are denied. While the respondents say it is not a real issue, at least in relation to Mr Nicoletti's involvement with Dimension, in my view issues as to the fact, timing, nature and extent of Mr Nicoletti's involvement with both Dimension and the Farms arise squarely on the pleadings.

36    I accept Harvard's submission that the financial condition of the Tillers around the time of the alleged conversations on 31 January 2019 is relevant. That is not because any representation about that financial condition was alleged to have been misleading, or to have been relied on. It is, rather, because if the Tillers are shown to have been in a difficult financial position as at the time of the alleged representations, that may increase the likelihood that they needed Mr Nicoletti to help them get out of that position, and therefore the likelihood that Mr Nicoletti had, and was intended to have, some involvement with Dimension and the Farms.

37    This possible connection arises most clearly in the pleadings in the statement Mr Nicoletti is alleged to have made on 21 March 2019. While it is true, as counsel for the respondents submitted, that this falls short of being pleaded as a representation about Mr Tiller's financial position, if Mr Tiller was in a parlous financial position as at January 2019, and did owe Mr Nicoletti a lot of money, that may help explain, and thus could go to prove, Mr Nicoletti's involvement in Dimension and his intended future involvement in the Farms. So documents going to Mr Tiller's financial position at around 31 January 2019 have apparent relevance.

38    Do the subpoenas to Landmark and Hall Chadwick serve a legitimate forensic purpose in relation to these issues? In my view they do, but they go further than is necessary to serve that purpose. Landmark held security over the assets of the Tiller partnership and appointed receivers in April 2019. Those matters make it likely that it paid close attention to, and was involved with, the financial affairs of the Tillers in the period leading up to April 2019. The receivers, at least from the time of their appointment and possibly before, also may be expected to have documents going to those matters. The fact that it appears that Mr Nicoletti did have some involvement in Dimension from at least around 31 January 2019 makes it reasonably likely that Landmark and Hall Chadwick have documents evidencing that involvement, or transactions by which Mr Nicoletti provided financial assistance to the Tillers. All in all, it is reasonably likely that documents which each of Landmark and Hall Chadwick hold will add to the relevant evidence in this case.

39    As I have said, in oral submissions counsel for the respondents placed emphasis on the breadth of the subpoenas, in view of what he described as a 'horde' of companies named as Entities of Interest.

40    I have noted that the evidence in the affidavit filed to support the issue of the subpoenas suggests that many of the entities are associated with Mr Nicoletti, at least because he is a director and sometimes also because he was a shareholder. I accept that some of this evidence was hearsay derived from John Caratti, and much of it not even explicitly sourced to that extent. So it deserves to be given limited weight. But the affidavit was admitted into evidence for the purposes of the interlocutory application, without objection, and no evidence was raised to contradict it. I consider it is appropriate for me to proceed, for the purposes of the interlocutory application only, on the basis that Mr Nicoletti was a director of the relevant entities and, where applicable, a shareholder. I take the same approach in relation to the evidence about association between Mr Tiller and some of the entities, which was similarly slight, but was nevertheless admitted into evidence without objection and not contradicted.

41    As I have said, another objection to the naming of the Entities of Interest in the subpoenas was that in each case (other than the Entities of Interest who are respondents or partnerships between respondents), the evidence is to the effect that the entity 'may' have been involved in transactions involving the Farms. This, it is said, makes the connection between the entities and the Farms mere speculation.

42    There is some force in this submission, but ultimately I do not accept it. Harvard points to discovered bank statements which, it says, show that an entity associated with Mr Nicoletti made substantial payments to Mr Tiller from 5 October 2018 up to 30 January 2019. It also points to discovered bank statements which show substantial payments to Dimension from a different entity, Apache Investments Australia Pty Ltd, said to be associated with Mr Nicoletti (and effectively identified as such in the defence) in February and March of 2019.

43    The word 'may' can encompass various levels of probability. But the point of substance is that Mr Nicoletti's involvement is relevant. It would appear that he has chosen to act as the director of a large number of companies. There are at least two cases where there is reason to believe that his involvement with Dimension and the Farms took place through companies associated with him. Also, it is pleaded in the defence that Mr Tiller told John Caratti that he (Mr Tiller) was in discussions with two or three farmers, one of whom was Mr Nicoletti, about being a financial backer for the farming business, through a corporate entity.

44    All of this means, in my view, that a subpoena defined by reference to other companies associated with Mr Nicoletti is reasonably likely to add to the relevant evidence in the case. Putting it in the terms adopted by Jagot J in Sklavos v Australasian College of Dermatologists, I do not consider that this is an unreal, fanciful or speculative view.

45    Given that conclusion, it is not, with respect, to the point that most of the Entities of Interest are not named in the pleadings. It is appropriate to use them to define the scope of material which does have the necessary level of apparent relevance to the issues that are pleaded.

46    I also do not consider that the use of the term 'involve' in the statement of claim requires the subpoenas to be set aside. It would be fair to say that this point was put more strongly in the written submissions than it was in counsel's oral submissions. In any event, while 'involvement' can take any number of forms, it is an ordinary English word and evidence about any link between Mr Nicoletti and Dimension or the Farms can be assessed to determine whether, objectively, it constitutes involvement. It is not a term used in the subpoenas. If it is so indeterminate that it makes the pleading bad, that is an issue about the pleading, not the subpoenas, and not one that appears to have been raised before now.

47    I therefore consider that the subpoenas serve a legitimate forensic purpose. There is, however, one respect in which they go further than is necessary to achieve that purpose. The subpoena to Landmark (at paragraph (c)) seeks materials in connection with any security connected with an Entity of Interest, without limiting that by reference to the Farms. That would capture securities given by Mr Nicoletti and the interests that are associated with him, which are entirely unconnected with the issues in these proceedings. That is too wide. While securities given by Mr Nicoletti or his associated entities in relation to Dimension or the Farms may go to show his involvement, securities unconnected with the Farms will not.

48    Similarly, at least on one reading, paragraph (a) of the subpoena to Hall Chadwick also captures anything connected to an Entity of Interest, whether connected to the Farms or not. And if that is not the correct reading, the subpoena is unacceptably ambiguous.

49    Another concern about the breadth of these two subpoenas is that there is no end date to the period they cover. In light of the fact that the receivers were not appointed until April 2019, it may be that 31 January 2019 is not the appropriate end date, even though that is the end date given in some of the other subpoenas. But I do not consider that the subpoenas should be open ended as to time.

50    It is not the function of the court to redraft subpoenas: Lowery v Insurance Australia Ltd [2015] NSWCA 303; (2015) 90 NSWLR 320 at [25]. I am therefore prepared to set the subpoenas to Landmark and the receivers aside, but to leave it open to Harvard to seek leave to issue revised subpoenas that rectify the overreach and ambiguity. Both parties accepted that this would be the appropriate course if I should decide that the subpoenas were too wide, but were not fundamentally bad.

CNH Industrial Capital Australia Pty Ltd

51    CNH Industrial Capital Australia Pty Ltd is an agricultural vehicle manufacturer and financier which had charges over assets of the Tiller partnership.

52    The subpoena to CNH seeks production of documents relating to any security interest held by it in the period 1 November 2018 to 31 January 2019 over any assets of the Tiller partnership or any Entity of Interest.

53    For the reasons given in relation to the subpoenas to Landmark and the receivers, I accept that it serves a legitimate forensic purpose to seek documents that go to security interests over assets of the Tiller partnership or of the Farms, which in turn are reasonably likely to be probative as to the financial position of Mr Tiller and any involvement by Mr Nicoletti.

54    However this subpoena suffers from the same vice as the subpoena to Landmark, in that it does not confine the materials produced in relation to Mr Nicoletti and the entities said to be associated with him by reference to the Farms. Orders setting aside the subpoena but providing for the issue of a revised subpoena will be made.

Co-operative Bulk Handling Ltd and CBH Group Holdings Pty Ltd

55    A subpoena was originally issued to CBH Group Holdings Pty Ltd, which then informed Harvard's solicitors that it was the wrong entity and that Co-operative Bulk Handling Ltd should have been served. Both companies are part of the CBH group and the subpoenas may be taken together for present purposes.

56    The CBH group purchases grain from farmers and manages the delivery and storage of grain around Western Australia. Each of the subpoenas seeks production of all documents in connection with delivery of grain by any Entity of Interest to any grain receival point in the Esperance Zone from 1 November 2018 to 31 January 2019.

57    I accept that documents of that nature are reasonably likely to be probative of Mr Tiller's financial position, and to that extent serve a legitimate forensic purpose, for the reasons I have given in relation to the other subpoenas. However, once again, this subpoena goes too far, because it is not confined by reference to the affairs of the Tillers or the Farms. Delivery of grain by entities associated with Mr Nicoletti unconnected with the Farms cannot have any bearing on the issues in these proceedings. Nor is there anything to suggest that, at least before 31 January 2019, Mr Nicoletti and entities associated with him had any part in delivery of grain from the Farms.

58    References to Mr Nicoletti and the Entities of Interest associated with him should be removed from the subpoena. Orders along the lines of those already referred to will be made in order to permit this.

National Australia Bank Limited (NAB)

59    This subpoena is different to the others that are challenged, as it does not refer to the Entities of Interest. It is limited to the application for the establishment of an account by Dimension, and certain details of any account held by that company, including the identity of the persons who made the application and the identity of the authorised signatories to the accounts. Bank statements show that Dimension had at least one account with NAB, which was opened on 21 February 2019.

60    The respondents did not direct any specific submissions to this subpoena. Once it is accepted, as I have, that a subpoena directed to the fact, timing, nature and extent of Mr Nicoletti's involvement with Dimension is relevant, the forensic purpose served by this subpoena is tolerably clear. For example if Mr Nicoletti was, or was not, a signatory to any account in Dimension's name, that will bear on the question of his involvement. I see no basis to set aside the subpoena to NAB.

In Front Australian Business Solutions Pty Ltd

61    In Front Australian Business Solutions Pty Ltd is a finance company that specialises in equipment and inventory finance. It held registered charges over equipment operated by the Tiller partnership.

62    The subpoena to In Front seeks all documents in connection with any default on any hire purchase agreements by Mr Tiller or any Entity of Interest in relation to the Farms from 1 November 2018 to 31 January 2019.

63    Unlike the other subpoenas I have indicated I am prepared to set aside, this is clearly limited by reference to the Farms. It is also limited to an appropriately confined time period. Any default by Mr Tiller on hire purchase agreements in relation to the Farms is reasonably likely to add to the evidence concerning his financial position and, through that, Mr Nicoletti's involvement with the Farms. The same goes for any default by the other entities that are associated with Mr Tiller.

64    However I can see no basis in the pleadings or evidence for any suggestion that either Dimension or the entities associated with Mr Nicoletti were guilty of any such default in the period leading up to 31 January 2019. To that extent, the subpoena goes further than the legitimate forensic purpose. After all, Dimension did not operate the Farms at that time, and the thesis implicitly underlying Harvard's case is that Mr Nicoletti's financial position was sufficiently strong for him to provide substantial assistance to Mr Tiller.

65    I will set aside the subpoena, but with provision for an amended subpoena to issue following the process I have already outlined.

Other matters

66    I will comment on a few other matters that were the subject of the parties' submissions.

Fishing

67    The respondents claimed that the subpoenas constituted what is commonly known as 'fishing'. For the reasons I have given, I have found that most of them were too wide in certain respects. However while the concept of 'fishing' in the context of compulsory interlocutory processes has undergone some reconsideration since Jordan CJ's above quoted observation in 1938 (see Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136), his Honour's concise description of the concept as 'endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all' or 'to discover the nature of the other side's evidence' remains sound.

68    Here, Harvard has alleged in its statement of claim that Mr Nicoletti was and would be involved in Dimension and was intended to be involved in the Farms. Those allegations are denied in the defence. So the case is there on the pleadings. Obtaining documents that go to that case is not fishing.

Oppression

69    There is no evidence that the subpoenas require an inordinately large number of documents to be searched or produced, or that any of the recipients will have any difficulty in finding the relevant documents. Nor is there any evidence that any of the recipients of the subpoenas have objected to their contents or scope. To the contrary, two of the recipients have delivered documents to the registry of the court. Another, NAB, has indicated that it will not be in a position to comply by the time set in the subpoena but will do so by 14 October 2019. A fourth, Landmark, has corresponded through its solicitors with the solicitors for Harvard. The outcome of the correspondence is that Landmark will wait for the outcome of this application before complying, but has not raised any objection to compliance per se.

70    In all the circumstances I do not consider that any potential for oppression weighs in favour of exercising the discretion to set any of the subpoenas aside.

Confidentiality

71    An affidavit of Simon England sworn 1 October 2019 filed in support of the respondents' application contains evidence to the effect that the documents sought by the subpoenas are sensitive documents relating to the financial affairs of Dimension and a wide range of entities said to be unrelated to these proceedings. The affidavit records concern that disclosure of documents produced in compliance with the subpoenas may prejudice the ongoing commercial interests of Mr Tiller and Mr Nicoletti, including when the documents come to the knowledge of John Caratti.

72    Confidentiality of documents does not provide a basis to set aside a subpoena, although it is a factor to be taken into account: Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 380-381. Also relevant are the protections afforded by the Harman v Secretary of State for the Home Department [1983] 1 AC 280 'implied undertaking' (confirmed by the High Court to be a substantive obligation: see Hearne v Street [2008] HCA 36; (2008) 235 CLR 125).

73    Here, the concern about confidentiality was expressed at a high level of generality which makes it impossible for the court to make suitable orders to protect the interests of the respondents in that regard, even if it were minded to do so. If the respondents are concerned about the confidentiality of any documents or classes of documents, the proper course is to raise those concerns in a specific manner with Harvard's solicitors, in an attempt to agree an appropriate confidentiality regime. Only when that process is exhausted can the intervention of the court to resolve the issue be meaningfully invoked.

Credit

74    There was a suggestion in Harvard's written submissions that the subpoenaed material may go to the credibility of the evidence to be given by the key witnesses. I am inclined to take this as just one way of saying that the material was probative of facts in issue. But to the extent that it was a submission that the subpoenaed material could be used to impugn the credit of any witness, the respondents submitted that a subpoena should only be issued for such a purpose if the way in which the material will go to credit is very specifically identified. I accept that submission, which is consistent with the generally limited scope that the law permits to parties seeking to attack credit in a manner collateral to the facts in issue: see Ran v The Queen (1996) 16 WAR 447 at 453. However given that the subpoenas have a legitimate forensic purpose unconnected with questions of credit, it is not necessary to take the matter further.

Conclusion

75    Six of the seven challenged subpoenas should be set aside; the exception being the subpoena issued to NAB. That is because, in the places I have indicated, they are defined by reference to a range of entities which is too wide, and are not confined by reference to the affairs of the Farms, or if they are so confined, they are unacceptably ambiguous. Also, the subpoenas to Landmark and the receivers lack an end date in relation to the range of relevant material.

76    Harvard should file minutes of amended subpoenas and the interlocutory application should be adjourned to a further hearing to determine whether those amended subpoenas should be issued. I will hear the parties as to the time frames for those steps.

77    Obviously the time for compliance with the amended subpoenas will need to be different to the time for compliance of the existing ones. There may also be a need for consequential orders permitting parties who have already provided documents to the court to uplift those documents or, if they do not wish to do so, requiring them to confirm that they do not.

78    The question of the costs of the interlocutory application should be reserved to the adjourned hearing.

Associate:

Dated:    10 October 2019