Federal Court of Australia

Frigger v Trenfield (Subpoena to FTI Consulting) [2023] FCA 1001

ORDERS

THE COURT ORDERS THAT:

1.    The subpoena to produce documents directed to FTI Consulting (Australia) Pty Ltd dated 27 July 2023 to the extent of paragraphs 1, 2 and 4(d) be set aside.

2.    The costs of the interlocutory application to set aside the subpoena be paid by the applicants such costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

COLVIN J:

1    A bankrupt estate of each of Mrs Frigger and Mr Frigger is being administered by Ms Trenfield as trustee. By proceedings commenced in this Court, Mrs Frigger and Mr Frigger advance claims to the effect that the administration is being conducted by FTI Consulting (Australia) Pty Ltd rather than by Ms Trenfield as trustee or, at least, in the interests of FTI Consulting. They advance those claims on the basis of the alleged terms upon which, and the circumstances in which, Ms Trenfield is said to have been employed by FTI Consulting. The statement of claim focuses upon matters that relate to Ms Trenfield's employment.

2    FTI Consulting is not a party to the proceedings which are only brought again Ms Trenfield. Leave was given to Mrs Frigger and Mr Frigger to issue a subpoena addressed to FTI Consulting. The terms of the subpoena sought, amongst other things, financial statements, work in progress records and a general ledger for what was described as a tax deferred asset.

3    The terms of the subpoena are not confined in any way to particular documents that concern records that relate to the administration of the estates of Mrs Frigger and Mr Frigger. In particular, they are not confined in any respect to what appears to be the justification for the subpoena in terms of relevance. That is to say, they are not confined to how the remuneration, fees and disbursements relating to the administration of the bankrupt estates of Mrs Frigger and Mr Frigger are being treated in the accounts of FTI Consulting and what arrangements, if any, have been made for the assignment of any remuneration or other entitlements to payment that accrue to Ms Trenfield as trustee.

4    It is in those circumstances that FTI Consulting applies to set aside three aspects of the subpoena. The relevant paragraphs are as follows:

1.    Financial statements, including Profit & Loss, Balance Sheet and Cash Flow for FTI Consulting (Australia) Pty Ltd for years ending 30 June 2019, 30 June 2020, 30 June 2021, 30 June 2022, 30 June 2023

2.    Work-in-progress list/schedule for years ending 30 June 2019, 30 June 2020, 30 June 2021, 30 June 2022, 30 June 2023

…

4.    General ledger for:

…

(d)    Tax deferred asset of $5,100,000, described in FTI Consulting, Inc's Annual Report 'Income tax provision' page 38

5    The principles relating to the setting aside of a subpoena are well established. They were recently summarised by Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 42) [2023] FCA 750 at [7]. Giving effect to those principles, I am not satisfied that the subpoena is appropriately focused upon documents which have apparent relevance to these proceedings. Rather, the categories in the subpoena are extremely broadly drawn and cannot be justified on the basis of the issues that arise in the case as currently articulated. It follows that I do not accept that the full extent of the documents that would be sought if compliance with the subpoena was required would fulfil a legitimate forensic purpose in relation to these proceedings.

6    For those reasons I uphold the application to set aside the subpoena. There will be orders setting aside the subpoena to produce documents directed to FTI Consulting (Australia) Pty Ltd dated 27 July 2023 to the extent of paragraphs 1, 2 and 4(d). There will be a further order that the costs of the interlocutory application be paid by the applicants, to be assessed if not agreed.

Associate:

Dated:    23 August 2023