Federal Court of Australia

Villawood Management Pty Ltd v Marlton Group Pty Ltd [2025] FCA 980

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to confer and to submit to my chambers, by 4pm on 25 August 2025, proposed orders to give effect to my reasons for judgment.

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

REASONS FOR JUDGMENT

ANDERSON J:

1.    INTRODUCTION

1    The applicant (Villawood) by two interlocutory applications both dated 6 June 2025 seeks to review two decisions of Registrars of this Court (collectively, the review applications).

2    The first application is to review the exercise of power by Senior National Judicial Registrar Legge in relation to a subpoena issued on 21 February 2025 addressed to Mills Oakley (MO Subpoena). The subpoena was issued by Villawood and directed to Mills Oakley, being the solicitors of the first and third respondents (Marlton and Mr Johnson respectively, and collectively, the Johnson Parties). Registrar Legge heard an application of the Johnson Parties to set aside the subpoena on 28 May 2025 and ordered on 4 June 2025 that the subpoena be wholly set aside on the basis of reasons published the same day. By their first interlocutory application, Villawood contends that Registrar Legge was wrong to do so (MO Subpoena Application).

3    The second application is to review the exercise of power by National Judicial Registrar Edwards, also on 4 June 2025. That exercise of power was in respect of Villawood’s interlocutory application, dated 8 November 2024, by which Villawood sought leave to examine Mr Johnson as to the adequacy of the respondents’ compliance with orders requiring production of documents in respect of Villawood’s Notice to Produce dated 27 August 2024 (the Notice to Produce). Registrar Edwards heard the application on 16 April 2025 and, on 4 June 2025, dismissed the application. Villawood contends that Registrar Edwards was wrong to do so (Examination Application).

4    In both applications the Court is required to decide the applications de novo: Federal Court of Australia Act 1976 (Cth), s 35A(5)-(6); Federal Court Rules 2011 (Cth), r 3.11.

5    Villawood read and tendered in evidence on the applications, the two affidavits of Mr Vince Annetta (solicitor for Villawood) dated 6 June 2025, which were filed in the review applications together with the following affidavits filed in the proceeding:

(a)    the affidavit of Vince Annetta dated 8 November 2024;

(b)    the affidavit of Vince Annetta dated 31 January 2025;

(c)    the affidavit of Dean Pappas (company secretary of Villawood) dated 21 March 2025;

(d)    the affidavit of Vince Annetta dated 27 March 2025; and

(e)    the affidavit of Lucy Broughton (solicitor for Villawood) dated 21 July 2025.

6    The Johnson Parties read and tendered in evidence the following affidavits:

(a)    the affidavit of Michael Tandora (solicitor for the Johnson Parties) dated 4 March 2025;

(b)    the affidavit of Michael Tandora dated 11 March 2025;

(c)    the affidavit of Michael McCreadie (director of the second respondent) dated 24 March 2025;

(d)    the affidavit of Michael McCreadie dated 25 March 2025;

(e)    the affidavit of Stuart Lewin (solicitor for the Johnson Parties) dated 9 April 2025;

(f)    the affidavit of Michael Tandora dated 11 April 2025;

(g)    the affidavit of Nikita Angelakis (solicitor for the Johnson Parties) dated 11 April 2025;

(h)    the affidavit of Michael Tandora dated 23 May 2025; and

(i)    the affidavit of Michael Tandora dated 23 July 2025.

7    Affidavits of Stuart Levin dated 22 July 2024 and 29 November 2024 (referred to as the first Lewin affidavit and second Lewin affidavit respectively), were included in the application book filed on the applications before me and were referred to extensively in the parties’ submissions. However, these affidavits were not formally read by the Johnson Parties in the applications before me.

8    The second respondent (Wallan Pastoral) did not tender any affidavit evidence on the applications.

2.    BACKGROUND

9    Both applications arise from the same facts. In late 2006, Mr Johnson was invited to become a director of, and to participate in, the business projects undertaken by Villawood. The invitation was issued by Rory Costelloe, then the sole director of Villawood. Pursuant to Mr Costelloe’s and Mr Johnson’s agreement, Mr Johnson (through associated entities) acquired approximately 29% of the shares in Villawood and 10% of the shares in a related company, Sandhurst Capital Pty Ltd (Sandhurst), and in due course became a director of each of those entities.

10    Mr Costelloe and Mr Johnson, together with other persons and entities, are now involved in a number of disputes, and various proceedings are currently on foot in this Court. Those relevant for present purposes are the present proceeding, VID653/2024 (Wallan Proceeding), and proceeding VID640/2024 (Marriott Waters Proceeding).

11    The Wallan Proceeding relates to the development of a farm located near Wallan (Wallan Project). The land was acquired in 2010 by Wallan Pastoral, which was a special purpose entity established for that purpose. Wallan Pastoral holds the land on trust for the beneficiaries of a trust (Wallan Pastoral Unit Trust, or WPUT). Mr Johnson was made sole director of Wallan Pastoral. In that capacity, Mr Johnson had day-to-day control of the Wallan Project. Villawood alleges in this proceeding that the Wallan Project involved an agreement entered into in 2010, pursuant to which Villawood was to receive valuable development management fees, and that Mr Johnson, in breach of that agreement and his statutory and fiduciary duties to Villawood, attempted to divert the fees to his own family company, Marlton. Villawood alleges that Mr Johnson attempted to cover up these breaches by representing that a development management agreement relating to the Wallan Project was executed in 2012 (2012 DMA) by Mr Johnson on behalf of two entities that he controlled (Wallan Pastoral and Marlton) when in fact the 2012 DMA did not exist at that time and was not authentic. The Johnson Parties, in their defences, generally deny that the 2012 DMA is not authentic. However, in the second Lewin affidavit (but not in their pleaded defences), it is asserted that the 2012 DMA was not executed in 2012 but rather it was executed in about 2022.

12    The Marriott Waters Proceeding relates to a project in which Villawood has developed land belonging to the original landowner, Graeme Marriott, located in Lindhurst. Villawood alleges that Mr Johnson, in breach of his statutory and fiduciary duties, varied certain deeds to which Mr Marriott was party with the effect that a portion of Mr Marriott’s land was no longer included in the relevant project, but instead would be sold to Tjay Developments Pty Ltd (Tjay), an entity associated with Mr Johnson. Villawood further alleges that these variation deeds were not disclosed to the other directors of Villawood in circumstances where those deeds deprived Villawood of its ability to earn development management fees with respect to all or part of Mr Marriott’s land and also diverted an opportunity away from Villawood to purchase the transferred portion of the land.

13    Villawood allege that Calibre Holdings Pty Ltd (Calibre), an entity that is wholly or partly owned and controlled by Mr Johnson, is a 50% shareholder in Tjay and also acquired an interest in the transferred land.

14    In both the Wallan Proceeding and the Marriott Waters Proceeding, Villawood’s central allegation is that Mr Johnson acted in his personal interest and at the expense of Villawood and thereby breached contractual, fiduciary and statutory duties.

15    On 21 January 2016, Villawood and its shareholders entered into a shareholder agreement (Shareholders Agreement). Calibre and Marlton Investments Pty Ltd are shareholders in Villawood. Marlton Investments Pty Ltd is 90% owned by Mr Johnson. Under the terms of the Shareholders Agreement, the shareholders agreed (amongst other things), to cooperate and use their best endeavours to ensure that Villawood successfully carries on its business (clause 7.1(h)); to be just and faithful in the shareholders’ activities and dealings with Villawood and the other shareholders (clause 7.1(i)); and not to do any act or thing whereby the interests of Villawood may be prejudicially affected or impaired (clause 7.2 (c)).

16    Clause 17 of the Shareholders Agreement provides for shareholder defaults. In summary, a mechanism is created by which a default notice can be issued, and if the default notice is not cured, then the shareholders’ rights as shareholders are suspended and a compulsory share acquisition process takes place.

17    On 27 June 2024, Villawood issued the first default notice to Calibre and Marlton Investments Pty Ltd. The first default notice identified the diversion of opportunities and profits pleaded in the Wallan Proceeding and the Marriott Waters Proceeding (amongst other things) as triggers for the default provisions under the Shareholders Agreement. The Wallan Proceeding and the Marriott Waters Proceeding were commenced shortly after issuing the first default notice.

18    By an interlocutory application dated 23 July 2024 filed in the Marriott Waters Proceeding, Marlton Investments and Calibre seek an injunction to restrain Villawood from acting on the first default notice pending the conclusion of the Marriott Waters Proceeding and the Wallan Proceeding (the injunction application). That injunction application is listed for hearing before the docket judge, O’Callaghan J, on 19 September 2025.

3.    MO SUBPOENA APPLICATION

3.1    Further background

The unitholder meeting and Marlton’s claim for fees

19    Mr Johnson, as sole director of Wallan Pastoral, controlled the day-to-day operations of the Wallan Project. On 23 or 24 February 2024, Mr Johnson chaired a meeting of some of the unitholders of the WPUT (Unitholder Meeting) to provide them with an update on the Wallan Project. At the Unitholder Meeting, Mr Johnson gave a presentation and referred in passing to the management of the Wallan Project being undertaken by his own family company, Marlton. Mr Johnson used a slide deck to aid his presentation. Noting that there is a dispute as to which version of the slide deck was actually used at the meeting, a version of the slide deck subsequently provided by Mills Oakley on 19 April 2024 contained the following text:

Under advice from Pitcher Partners, during 2012, a Development Management Agreement (“DMA”) was entered into with Mandate Property Group.

…

The Wallan property has been managed by [Mr Johnson] for a period of 13 years with no fees taken to date. A fee will be sought in accordance with the DMA.

Marlton was previously known as Mandate Property Group.

20    The 2012 DMA, if valid and enforceable, would operate to confer upon Marlton, the right to receive valuable management fees in respect of the Wallan Project.

21    One of the attendees at the February 2023 presentation was Trevor Lockwood. Mr Lockwood was and is a director of Sandhurst and a unitholder in the WPUT. Mr Lockwood had not heard of any agreement being entered into in 2012.

Lockwood version of DMA

22    On 18 April 2023, Mr Lockwood (via an employee, Amelia Rizzo) asked Hannah Johnson (Mr Johnson’s daughter), an employee of Marlton, for a copy of the 2012 DMA as well as several other documents.

23    On 27 April 2023, Ms Johnson replied, attaching part of the requested documentation but not the 2012 DMA.

24    Ms Rizzo forwarded the documents via email to Mr Lockwood, and said in her email:

I do not have a copy of the DMA yet but discussed with Hannah. She said it was signed around 2012 and only exists in hard copy which she is trying to locate. She said she will send me a copy once she locates.

25    On 15 May 2023, Ms Rizzo emailed Mr Lockwood and attached the 2012 DMA, saying, “See attached DMA. I haven’t had a chance to review yet”. Two documents were attached to the email: “Wallan Pastoral DMA Part 1.pdf” and “Wallan Pastoral DMA Part 2.pdf”. These attachments together comprise a version of the 2012 DMA (Lockwood version).

26    The Lockwood version:

(a)    was signed in wet ink on page 45 by Mr Johnson for both Marlton and Wallan Pastoral;

(b)    did not contain a wet ink date on page 4, containing only “2012” in type. The cover page of the Lockwood version recorded the date of “January 2012”, also in type; and

(c)    contained a “page 2” as part of the table of contents.

27    No one other than Mr Johnson signed the 2012 DMA. Of course, as noted above, Villawood contends that the 2012 DMA is not genuine.

Mills Oakley version of DMA

28    On 26 February 2024, Craig Treasure wrote to Mr Johnson on behalf of Sandhurst and Villawood stating:

On 23 February 2023, you chaired a meeting of the unitholders of the Wallan Pastoral Unit Trust during which you made statements to the effect that you intended to appoint your private entity “Mandate” as the development manager for the Projects.

If implemented, the appointment of Mandate would replace Villawood Management Pty Ltd (VM) as the manager of the Projects and thereby deprive VM of management fees. For the avoidance of doubt, we confirm that this change has never been raised with the Villawood/Sandhurst board members and is not agreed.

29    On 19 April 2024, Mills Oakley wrote to Mr Treasure and David Rennick of the Villawood group and Mr Lockwood and Mr Costelloe of Sandhurst. Mills Oakley attached a version of the 2012 DMA (Mills Oakley version). The letter said, “the Johnson Entities have nothing to hide with respect to the Wallan Pastoral Allegations” and referred to the Mills Oakley Version of the 2012 DMA as “a copy of a development agreement between Wallan Pastoral and Mandate dated 12 January 2012”.

30    The Mills Oakley version of the 2012 DMA relevantly has the following characteristics:

(a)    it records the date, on page 4, as “12 January 2012”, with “12 January” having been added by pen. The cover page still refers to “January 2012” in type;

(b)    it is missing page 2, one of the pages that makes up the “contents”; and

(c)    it contains at page 45 the signature page with Mr Johnson’s two signatures in wet ink.

31    The Mills Oakley version of the 2012 DMA is different from the Lockwood version in that it is missing page 2 and contains a handwritten addition to the date on page 4. No explanation was given by Mills Oakley as to why the two versions of the 2012 DMA were different.

32    The 19 April 2024 Mills Oakley letter also attached a version of the slide deck purportedly used at the Unitholder presentation, which contained the line, “[u]nder advice from Pitcher Partners, during 2012, a Development Management Agreement (‘DMA’) was entered into with Mandate Property Group”.

33    On 17 May 2024, Clayton Utz replied to the Mills Oakley letter dated 19 April 2024 and relevantly stated:

Please send us a copy of the following documents which formed attachments to your letter, in the form in which they are stored including all metadata associated with the documents: (a) the development agreement between Wallan Pastoral dated 12 January 2012

34    On 31 May 2024, Mills Oakley replied to Clayton Utz, and relevantly to the request for documents and metadata made by Clayton Utz on 17 May 2024, stated:

We also do not see any basis upon which Our Clients are obliged to provide you with the material sought in… your letter of 17 May 2024… nowhere in the correspondence—or the Draft SoC—is there any suggestion that those copies are anything other than true copies of the documents.

Finally, if there are any allegations as to the provenance of those documents then, given their (obvious) gravity, they ought to be squarely made.

35    The Marriott Waters proceeding was commenced on 8 July 2024. The Wallan Proceeding was commenced on 9 July 2024.

The Lewin affidavits

36    On 22 July 2024, Mr Lewin swore his first affidavit in the Marriott Waters Proceeding. This affidavit was filed in support of the injunction application, which, as noted above, was filed on 23 July 2024. The injunction application sought to restrain Villawood from acting on the first default notice and initiating the process to transfer compulsorily Mr Johnson’s shares in Villawood.

37    The first Lewin affidavit contained the following paragraphs:

[88] However, the bases upon which the respondents to the Wallan Proceeding deny the allegations in the Default Notice, in so far as they concern the Wallan Property, and the Wallan Proceeding have been set out in the 19 April letter referred to in paragraph 34 above. In this section E I set out those matters, which are based on instructions provided to me by Mr Johnson. I expect that those matters will form the basis of the defence to be filed in the Wallan Proceeding.

…

[99] On 12 January 2012, the “Development Management Agreement” referred to in paragraph 4(e) of the statement of claim in the Wallan Proceeding was executed on behalf of Wallan Pastoral and Marlton Group by Mr Johnson. At page 219 of Annexure SAL-1 is a copy of that agreement. Mr Johnson did not immediately disclose that agreement to unitholders in WPUT because no payment under it was due in the foreseeable future.

38    On 27 August 2024, Villawood served the Notice to Produce seeking documents in connection with the First Lewin Affidavit, including the original of the 2012 DMA. Villawood informed the respondents that it would seek to lead expert evidence at trial in relation to the 2012 DMA.

39    On 29 November 2024, Mr Lewin swore, filed and served his second affidavit in the Marriott Waters Proceeding in support of the injunction application, which consisted, in its entirety, of the following paragraphs:

[1] I am a partner of the law firm Mills Oakley, the solicitors for the respondents in this proceeding. I have the care and conduct of the proceeding on behalf of the respondents and am authorised to make this affidavit on their behalf.

[2] On 22 July 2024, I swore an affidavit that was filed in this proceeding, in which I stated (at [99]):

“On 12 January 2012, the ‘Development Management Agreement’ referred to in paragraph 4(e) of the statement of claim in the Wallan Proceeding was executed on behalf of Wallan Pastoral and Marlton Group by Mr Johnson. … Mr Johnson did not immediately disclose that agreement to unitholders in WPUT because no payment under it was due in the foreseeable future.”

[3] I believed that statement to be true at the time I swore my affidavit but I now believe that the document was executed in about 2022 and so I am making this affidavit to correct that statement and withdraw it.

40    As is plain from the above, Mr Lewin did not attempt to explain how the false statement relating to the 2012 DMA made its way into his first affidavit. No explanation has been given as to how or why Mr Lewin changed his mind.

41    Marlton and Mr Johnson filed their defence in the Wallan proceeding on the same day, 29 November 2024. Wallan Pastoral filed an amended defence in the Wallan Proceeding on 20 January 2025. None of the pleaded defences admit that the 2012 DMA was not executed on the date it bears, or that Mr Johnson falsely represented that it had been executed in 2012.

Termination of the 2012 DMA

42    On 29 October 2024 (that is, between the two Lewin affidavits), Wallan Pastoral and Marlton agreed to terminate the 2012 DMA pursuant to a Deed of Termination of Development Management Agreement. Relevantly, this involved Mr Johnson signing for Wallan Pastoral and for Marlton.

The Bottrell and McCreadie Documents

43    Villawood obtained further documents in respect of the 2012 DMA from Matthew Bottrell, the former chief executive officer of Marlton, and from Wallan Pastoral, through its director Michael McCreadie.

44    Mr Bottrell produced documents on 14 April 2025 pursuant to a subpoena issued on 4 April 2025. Wallan Pastoral produced documents on 24 and 25 March 2025 pursuant to the Notice to Produce.

45    Villawood submits that these documents show the following:

(a)    on or around 11 February 2023, Mr Bottrell prepared a draft of the slide deck that Mr Johnson subsequently used at the Unitholder presentation on 23 or 24 February 2023;

(b)    on 11 February 2023, Mr Bottrell provided to Mr Johnson that draft of the slide deck. That draft contained a Mandate logo on the front page. It did not contain any reference to the 2012 DMA. Instead, it contained the following:

To date, on a zero-fee basis, Mandate Property Group has sourced properties, secured funding, ensured compliance and managed the project

(c)    on 12 February 2023, Mr Johnson provided comments to Mr Bottrell on the draft slide deck via email. His comments included that the Mandate logo should be deleted, and the following:

A dm agreement has been entered into with Mandate properties on wallan in 2012 under advice from Pitcher Partners to ensure/safeguard tax position

Mandate has not charged a fee since its appointment

(d)    on 14 February 2023, Mr Bottrell produced a revised version of the slide deck. That document no longer contained the Mandate logo. It also replaced the reference to Marlton having acted on a “zero-fee basis”, with the following added text:

Wallan Pastoral is proving to be a [valuable] investment, we expect returns above an IRR of 20% to be achieved.

…

Under advice from Pitcher Partners, a Development Management Agreement was entered into with Mandate Properties in 2012 to provide a safeguard for tax matters. Please note that Mandate has not charged any fees since its appointment.

(e)    on 20 February 2023, a further soft version of Mr Bottrell’s slide deck was created by Beth Johnson, Mr Johnson’s daughter and an employee of Marlton. That version of the slide contained, under the heading “management fees”, the following:

The Wallan property has been managed by [Mr Johnson] for a period of 13 years with no fees taken to date.

In accordance with the DMA, a Project Management Agreement will be drafted reflecting standard Villawood Management fee structure. A retainer of $10,000 per month will be sought prior to fees payable.

(f)    on 20 February 2023, Mr Bottrell circulated to Mr Johnson and others a revised draft slide deck. That version of the slide deck referred to the following:

Wallan Pastoral is proving to be a [valuable] investment, we expect [overall] returns to exceed 20%.

…

Under advice from Pitcher Partners, during 2012, a Development Management Agreement (“DMA”) was entered into with Mandate Properties. The DMA provides a safeguard for tax matters. Please note that Mandate Properties has not charged any fees since its appointment.

Villawood submit that this language reflected, in substance, what was included in the version of the presentation document produced by Mills Oakley on 19 April 2024;

(g)    the metadata for a soft copy version of the 2012 DMA (Soft Copy version) has the creation date of 1 May 2023. The Soft Copy version is an under-developed version of both the Lockwood version and the Mills Oakley version of the 2012 DMA. There is no address for service and there is no signing page. Villawood submit that the 1 May 2023 creation date of the Soft Copy version fits into the sequence of events in which Mr Lockwood first asked for a copy of the 2012 DMA on 18 April 2023, and where the Lockwood version was then provided to him on 15 May 2023.

The MO Subpoena and the responsive documents

46    On 21 February 2025, Villawood issued the MO Subpoena. The schedule to the MO Subpoena is in the following terms:

1.    All documents which contain or refer to the "instructions" referred to in paragraph 88 of the First Lewin Affidavit, provided by Anthony Ronald Johnson to Stuart Andrew Lewin, to the effect set out in paragraph 99 of the First Lewin Affidavit as follows:

(a)    “On 12 January 2012, the ‘Development Management Agreement’ referred to in paragraph 4(e) of the statement of claim in the Wallan Proceeding was executed on behalf of Wallan Pastoral and Marlton Group by Mr Johnson”

and / or

(b)    “Mr Johnson did not immediately disclose that agreement to unitholders in WPUT because no payment under it was due in the foreseeable future".

2.    All drafts of paragraph 99 of the First Lewin Affidavit, whether so numbered or constituted, in the form which they are stored, including, in respect of any soft copy documents, all meta data associated with the documents.

3.    All documents which refer to Mr Lewin’s belief to the effect that the “Development Management Agreement” (referred to in paragraph 99 of the First Lewin Affidavit) was executed in about 2022, as deposed in paragraph 3 of the Second Lewin Affidavit.

4.    All drafts of the Second Lewin Affidavit, in the form which they are stored, including, in respect of any soft copy documents, all meta data associated with the documents.

47    On 6 March 2025, Mills Oakley produced 16 documents in response to the MO Subpoena. A table entitled “objection schedule”, which describes the documents, was annexed to the letter Mills Oakley sent to the Registrar of this Court when they produced these documents. That table is reproduced as Annexure A to these reasons.

3.2    Legal principles: setting aside a subpoena

3.2.1    Legitimate forensic purpose

48    The principles applicable to setting aside a subpoena are well established and were not in dispute between the parties.

49    The party who requests the issue of a subpoena bears the onus of establishing that the subpoena has a legitimate forensic purpose. A subpoena may be set aside if it is cast in terms which require the production of documents which do not have apparent relevance to the issues in the case: Seven Network (Operations) Ltd v Fairfax Media Publication Pty Ltd (2023) 418 ALR 284; [2023] FCAFC 185 (Wheelahan, Anderson, and Jackman JJ) [37]-[38] citing Secretary of the Department of Planning Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Bell P at [57]-[58], [60]-[61] and [65]; Brereton JA at [86] and [96]; McCallum JA at [98] and [100]).

50    The Full Court, at [38] of Seven Network, identified the following principles which Blacktown provided authority for:

(a)    the language of “tests” should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose:

(b)    it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena:

(c)    it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive:

(d)    put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case:

(e)    it is sufficient to show that the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist:

(Citations omitted.)

51    It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an “apparent relevance” to the issues in the case and/or bear upon the cross examination of witnesses expected to be called in the proceedings: Blacktown at [80] (Bell P).

3.2.2    Fraud or Improper Purpose “exception” to privilege

52    Legal professional privilege will not attach to a document if there are reasonable grounds for believing that the communication effected by the document was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. The test is objective and it is not necessary to prove the ulterior purpose, but there has to be something to give colour to the charge, a prima facie case that the communication is made for an ulterior purpose: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 514 (Brennan CJ).

53    Although the rule concerning fraud or other illegal purpose is often called an “exception” to legal professional privilege, it is not an exception because the illegal or fraudulent objective of the communication prevents the communication from becoming the subject of privilege, so that privilege never attaches to it in the first place: ASIC v Tzouvelis [2023] FCA 431 at [12] (O’Callaghan J).

54    Legal professional privilege arises only because the public interest requires it, and the privilege does not exist where it would be contrary to a higher public interest to give effect to it: R v Bell; Ex parte Lees (1980) 146 CLR 141, 147 (Gibbs J). There is no public interest in a client engaging a legal practitioner for the purpose of preparing documents which have the effect of concealing the true nature of a transaction and which enable the client to present through documents a picture which is not true: ASIC v Mercorella (No 3) (2006) 58 ACSR 40; [2006] FCA 772, [100] (Mansfield J).

55    The extent of the application of the rule is not limited to fraud or crime. It extends to “some illegal or improper purpose” or “the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated”: Tzouvelis at [14], citing Propend at CLR 514 (Brennan CJ) and Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 513 (Gibbs CJ).

56    The fact that a solicitor knew of the client’s purpose but (wrongly) did not recognise it as being improper, or positively considered that the purpose was not improper, does not determine whether the communication is privileged. Conversely, the rule can apply even if the lawyer does not know of the fraudulent or improper purpose. The invocation of the exception stands or falls on the client’s purpose: Southern Equities Corporation Ltd (in liq) v Arthur Andersen and Co (1997) 70 SASR 166, 174 (Doyle CJ); Tzouvelis at [17]-[19].

57    It is not necessary to prove the improper purpose on the balance of probabilities. The prima facie test applies reflecting the fact that issues of legal professional privilege are usually dealt with in the interlocutory stages: AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 at [218] (Young J); Tzouvelis at [20].

58    The prima facie test does not require the party to show that it is more probable than not that at trial it will succeed. It is sufficient that the party show a sufficient likelihood of success: ABC v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] (Gummow and Hayne JJ), citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 (Kitto, Taylor, Menzies, Owen JJ); Tzouvelis [21]-[22]. In cases where “merely pecuniary interests are involved”, the prima facie test requires “some” probability of success: Beecham Group at CLR 622. Where a party goes into evidence on an application in which the prima facie test applies, the Court does not undertake a preliminary trial, and give or withhold relief upon a forecast as to the ultimate result of the case: Beecham Group at CLR 622.

59    If necessary, the Court may inspect documents to ascertain whether the rule applies: Tzouvelis at [30]-[32].

3.3    Consideration

3.3.1    Issues to be determined

60    For the purposes of determining the MO Subpoena Application, the Court must decide:

(a)    whether there is a legitimate forensic purpose for the MO Subpoena; and

(b)    whether an improper purpose taints the communications contained in the 16 documents responsive to the MO Subpoena such that they are not protected by privilege and may be inspected.

61    The Johnson Parties contend that Villawood has failed to discharge the onus it bears of establishing that the MO Subpoena has a legitimate forensic purpose. The Johnson Parties submit that Villawood has not shown that the documents sought by the MO Subpoena have “apparent relevance” to the issues in the case, or that there is “a reasonable basis beyond speculation that it is likely that the documents subpoenaed will materially assist on an identified issue”, citing Seven Network at [37]-[38]. The Johnson Parties submit that focus must be directed towards the asserted relevance and the categories of documents sought by the MO Subpoena, contending that it is not apparent how the documents sought by the four categories in the subpoena, which are primarily directed to instructions given by Mr Johnson to his lawyers in 2024, would likely assist on the issues articulated by Villawood.

62    The Johnson Parties submit that, even if the MO Subpoena was not set aside, inspection of documents produced to the Registry should be refused on grounds of legal professional and litigation privilege. Villawood submits that the basis of the claim for privilege is evident from the description of the documents produced and is deposed to by the responsible solicitors, and that claim has not been challenged by Villawood save on the basis that the “fraud exception” applies.

63    The Johnson Parties submit that, in considering the relevant circumstances, due regard must be had to the fact that a correcting affidavit was sworn by Mr Lewin and that this was done at the same time as the Johnson Parties filed their defence and before the hearing of the injunction application. The Johnson Parties submit that Villawood has not established, even on a prima facie basis, that the communications sought by the MO Subpoena were “for an improper purpose” and “were made in furtherance of or as a step preparatory to the commission of the fraud or wrongdoing”, citing Cole (No 5) at [217]-[218]. The Johnson Parties submit that it is not contrary to public interest for privilege to exist in the communications.

64    Wallan Pastoral’s position is that it has appropriately and adequately complied with the Notice to Produce. The only relief sought against Wallan Pastoral is Villawood’s costs of the applications. Wallan Pastoral submits that there is no justification to include a respondent in an application where the only relief sought against that respondent is the costs of the application.

65    Wallan Pastoral submits that to press the application against it in relation to costs, without identifying any basis for doing so, is contrary to Villawood’s obligation to conduct the proceeding consistently with the overarching purpose: ss 37N(1) and 37M(1)(b), FCA Act.

3.3.2    Whether there is a legitimate forensic purpose for the MO Subpoena

66    The pleadings in both the Wallan Proceeding and the Marriott Waters Proceeding involve factual disputes about Mr Johnsons’ alleged activities in diverting opportunities and profits from Villawood and delivering them to entities which he controlled and wholly or partly owned. The circumstances behind the creation of the 2012 DMA are relevant to those alleged activities.

67    In the Wallan Proceeding, Villawood alleges that it, and the Villawood group of companies, adopted a standard business model on all of its projects under which Villawood would enter into a development management agreement with the relevant special purpose vehicle (SPV) incorporated to hold the relevant land. This is defined in the Statement of Claim in the Wallan Proceeding (SOC), at [12], as the “Villawood SPV Model”. Villawood alleges that Mr Johnson was aware of the Villawood SPV Model from before 2010: SOC [15].

68    Villawood further alleges that in September 2010, the directors of Villawood, including Mr Johnson, resolved to proceed with the acquisition and development of the land in the Wallan Project using Villawood as the development manager, and a yet to be registered company to act as the SPV: SOC [19].

69    Villawood alleges that by reason of the resolution in September 2010, and the Villawood SPV Model, the directors, in effect, charged Mr Johnson with authority to conduct the Wallan Project, including to acquire and develop the Wallan Project land in accordance with the Villawood SPV Model, and to assume responsibility for, and control of, the proposed SPV by being appointed as a director of the company: SOC [21]. Villawood also alleges that the directors were, in effect, agreeing and acknowledging that the proposed SPV would delegate the day-to-day management of the project to Villawood, and that the directors created a pre-registration management contract (defined as the “Wallan Management Agreement”) between Villawood and Mr Johnson (on behalf of the proposed SPV) pursuant to which the SPV would delegate day-to-day management responsibilities to Villawood in exchange for management fees: SOC [21].

70    Villawood alleges that it began to provide development services in respect of the Wallan Project from the beginning of 2011, and that Wallan Pastoral ratified the Wallan Management Agreement: SOC [24]-[28]. Villawood alleges that, from a date presently unknown to it but which appeared to be around 2017, Mr Johnson began taking steps to conceal the fact that Villawood was the manager of the Wallan Project: SOC [29].

71    The Johnson Parties deny these allegations. In their defence (JP Defence), they deny the Villawood SPV Model and say that, alternatively, it did not apply as broadly as Villawood contends on the basis that the properties identified by Villawood for acquisition were properties within the urban growth boundary such that they could be developed as residential housing allotments promptly: JP Defence [12].

72    The Johnson Parties plead that, at the September 2010 meeting, it was determined that Mr Johnson would pursue the acquisition of the Wallan Project land as a speculative investment, outside of Villawood and “Villawood Properties”: JP Defence [19]. They further deny that Mr Johnson owed his role in relation to the Wallan Project to Villawood’s delegation, that Villawood provided any management services in respect of the Wallan Project, or that Villawood had any agreement pursuant to which it would get management fees from the Wallan Project: JP Defence [21], [24]-[28]. The Johnson Parties also deny that Mr Johnson took steps to conceal Villawood’s role as the manager of the Wallan Project: JP Defence [29].

73    Villawood submits, and I accept, it is against this background of factual disputes that the matters disclosed in the first Lewin affidavit and the second Lewin affidavit must be assessed.

74    Marlton and Mr Johnson filed their joint defence in the Wallan Proceeding on the same day the second Lewin affidavit was made, 29 November 2024. Wallan Pastoral filed an amended defence in the Wallan Proceeding on 20 January 2025. None of the pleaded defences admit that the 2012 DMA was not executed on the date that it bears. The respondents have not sought to amend their defences to admit that the development management agreement referred to in [4(e)] of the Wallan SOC was executed in about 2022, in light of the matters deposed to in the second Lewin affidavit. The Johnson Parties plead simply that the development management agreement was terminated by a deed dated 29 October 2024: JP Defence [36(b)].

75    The second Lewin affidavit makes no attempt to explain how the false statement relating to the 2012 DMA was made in the first Lewin affidavit. No explanation has been given as to how or why Mr Lewin changed his mind. As a consequence, the second Lewin affidavit raises more questions than it answers. The current position of Mr Lewin is that the 2012 DMA was executed in about 2022. Mr Lewin, in his second affidavit, does not mention any further instructions he obtained, the source of those instructions, or the basis for his belief that the 2012 DMA was executed in about 2022. The failure of Mr Lewin to address these matters in his second affidavit raises unanswered questions about the circumstances surrounding when the DMA was executed.

76    The Soft Copy version of the 2012 DMA was created on 1 May 2023. It is an incomplete version of both the Lockwood version and the Mills Oakley version of the 2012 DMA. There is no address for service and there is no signing page. Mr Lockwood first asked for a copy of the 2012 DMA on 18 April 2023, and the Lockwood version was provided to him on 15 May 2023. I accept Villawood’s submission that this unexplained chronology of events raises the possibility that the 2012 DMA was not created until after the Unitholder Meeting which took place on 23 or 24 February 2023. I accept that whether the 2012 DMA was created before or after the Unitholder Meeting is apparently relevant to the Court’s ultimate conclusions concerning Mr Johnson’s conduct and the alleged breaches of statutory and fiduciary duties and the Shareholders Agreement. The documents produced by the MO Subpoena can plausibly cast light on this issue, given they relate to the basis on which Mr Lewin, in his first affidavit, deposed that the 2012 DMA was executed in 2012, and then, in his second affidavit, deposed that the 2012 DMA was executed in about 2022.

77    I accept Villawood’s submission that the precise nature of Mr Johnson’s activities is relevant to the validity of the default notices, which is contested. This issue is also critical to both the substantive issues in the Wallan Proceeding and the injunction application to be heard on 19 September 2025, given the compulsory share acquisition process depends upon the validity of the default notices.

78    I am satisfied that the documents produced by the MO Subpoena are apparently relevant in the sense that it can be seen that the documents produced bear upon the issues in the case and bear upon the cross-examination of Mr Johnson who may be expected to be called in the Wallan Proceeding.

79    I am satisfied that the documents produced by the MO Subpoena are, or reasonably could be, apparently relevant to:

(a)    whether there is a serious question to be tried on the injunction application;

(b)    whether the respondents will be able to assert that they have clean hands at the hearing of their injunction application, an injunction being an equitable remedy; and

(c)    Mr Johnson’s credit both generally but also specifically in relation to the assertion that the 2012 DMA was created in about 2022.

80    I am satisfied that these purposes satisfy the legitimate forensic purpose requirement. The documents sought, being only 16 in number, “plausibly…relate to an issue or issues in the proceeding”: Seven Network [38(c)].

3.3.3    Fraud or improper purpose “exception” to privilege

81    The Johnson Parties now admit that the first Lewin affidavit contains false evidence as to the date upon which the 2012 DMA was executed. That false evidence was based expressly upon Mr Johnson’s instructions to his solicitor, Mr Lewin.

82    From 23 or 24 February 2023, the date Mr Johnson chaired the Unitholders Meeting for the WPUT until the filing of the second Lewin affidavit, on 29 November 2024, Mr Johnson consistently asserted that the 2012 DMA was executed in 2012. The evidence now is that the 2012 DMA was not created in 2012 but was executed in about 2022. I accept that the creation on 1 May 2023 of the Soft Copy version of the 2012 DMA throws doubt on the veracity of the assertion in the second Lewin affidavit that the 2012 DMA was executed in about 2022.

83    Legal professional privilege will not attach to the 16 documents produced in response to the MO Subpoena if there are reasonable grounds for believing that the communications effected by the documents was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest: Propend at CLR 514; Mercorella at [100]; Tzouvelis at [14].

84    What was Mr Johnson’s purpose in causing the first Lewin affidavit to be sworn and filed? Mr Johnson’s purpose cannot be gleaned from Mr Johnson’s explanation of the first Lewin affidavit because he has offered no explanation. Mr Johnson has not filed any affidavit explaining how the false evidence in the first Lewin affidavit came to exist. The second Lewin affidavit also contains no explanation and does not refer to instructions obtained or the source of those instructions for the belief that the 2012 DMA was executed in about 2022. As a consequence, Mr Johnson’s purpose is to be inferred from the surrounding circumstances.

85    The surrounding circumstances include the following.

86    Mr Johnson’s representations, commencing on 23 or 24 February 2023 (at the Unitholder Meeting), that the 2012 DMA was executed in 2012, provided an explanation for, and lent credibility to, the notion that Villawood was never entitled to management fees in respect of the Wallan Project. The documents produced by Mr Bottrell and Wallan Pastoral (as outlined above) also indicate that Mr Johnson was the source of the representation in the presentation shown to unitholders on 23 or 24 February 2023, that the 2012 DMA was executed in 2012.

87    In the absence of an explanation in the second Lewin affidavit as to the circumstances in which the false evidence in the first Lewin affidavit came about as to when the 2012 DMA was executed, I infer that Mr Johnson’s purpose in giving the instructions to Mr Lewin was to create false evidence to assist Mr Johnson’s pleaded defence.

88    On the evidence, I infer that prior to the first Lewin affidavit, which was filed on 22 July 2024, Mr Johnson instructed Mr Lewin that the 2012 DMA was executed in 2012. It is plain on the evidence that those instructions given by Mr Johnson were false. If a client deliberately causes a solicitor to give false evidence, such conduct constitutes fraud in the relevant sense that it is a “legal wrong that [has] deception, deliberate abuse of, or misuse of legal powers…at [its] heart”: Southern Equities at SASR 174.

89    No explanation has been forthcoming from either Mr Johnson or Mr Lewin to explain how the false claims that the 2012 DMA was executed on the date it bears came about. In the absence of an explanation, I infer that Mr Johnson’s false instructions were not an error, or given innocently. This is particularly the case, where the assertion as to when the 2012 DMA was executed was accompanied by an explanation as to why Mr Johnson did not reveal the 2012 DMA for many years, namely, that no payment was due in the foreseeable future.

90    In Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 8) [2014] VSC 567, Dixon J, at [165], referring to the duty of all lawyers not to mislead the court as to the facts said:

the duty required that lawyers should not mislead the court by stating facts that are untrue, or mislead the judge as to the true facts, or conceal from the court facts or documents which ought to be drawn to the judge’s attention or knowingly permit a client to attempt to deceive the court.

(Emphasis added.)

91    The fact as to when the 2012 DMA was executed, to which Mr Lewin swore in his first affidavit, went to one of the central issues in the Wallan Proceeding, namely who was entitled to management fees in relation to the Wallan Project. I infer that Mr Johnson’s purpose in giving those instructions can only have been to use Mr Lewin to mislead Villawood and the other parties in the Wallan Proceeding and to mislead the Court itself.

92    For these reasons, I am satisfied that Mr Johnson gave false instructions to Mr Lewin for an improper purpose in respect of the first Lewin affidavit.

93    As to the second Lewin affidavit, which was filed on 29 November 2024, Villawood must establish on a prima facie basis that the communications were animated by an improper purpose.

94    As mentioned above, the second Lewin affidavit does not contain any explanation for the false evidence in the first Lewin affidavit. The second Lewin affidavit also fails to explain the basis on which Mr Lewin came to believe that the 2012 DMA was actually executed in about 2022. Villawood submits that the second Lewin affidavit is to be seen as a partial continuation of the conduct of Mr Johnson that actuated the improper purpose of the first Lewin affidavit.

95    Villawood must establish, on a prima facie basis, evidence of an improper purpose. Villawood points to the following evidence to meet that burden:

(a)    the fact that the only soft copy version of the 2012 DMA that has been produced is the Soft Copy version which has a creation date of 1 May 2023;

(b)    the fact that Mr Bottrell, who prepared a draft (perhaps the first draft) of the slide deck on 11 February 2023, did not include any reference to the 2012 DMA but instead said that Marlton had acted on a “zero-fee basis”;

(c)    the fact that, on 12 February 2023, Mr Johnson instructed Mr Bottrell to include a reference to the 2012 DMA, as having been entered into in 2012, and only after that did Mr Bottrell do so;

(d)    the fact that after Mr Johnson issued those instructions, on 20 February 2023, Beth Johnson created a document which stated that, “[i]n accordance with the DMA, a Project Management Agreement will be drafted” (emphasis added);

(e)    the fact that Kara Sabo, Mr Johnsons’ daughter and an employee of Marlton, on 1 May 2023 created the Soft Copy version of the 2012 DMA. Noting the timeline of events which has been discussed in these reasons above, the Soft Copy version could be a predecessor of both the Lockwood version and the Mills Oakley version, which are now said to have been executed in about 2022. The Johnson Parties sought to submit at the hearing that the Soft Copy version could be explained as having been used to create a separate development management agreement in respect of a different property or project altogether. However, I am not satisfied that the evidence the Johnson Parties relied on indicates any such correspondence between the documents, and in any case, the evidence does not take any steps towards explaining the creation date of the Soft Copy version which is its key point of relevance;

(f)    of the 16 documents produced in response to the MO Subpoena, 12 relate directly to the very short second Lewin affidavit, which is a total of three paragraphs in length. The finalisation of the second Lewin affidavit involved the creation of 12 documents, on various days within a nine-day period from 20 November to 29 November 2024 (see Annexure A to these reasons); and

(g)    the absence of any explanation for how the relevant parts of the first Lewin affidavit came about, and of any reference to the instructions or information that Mr Lewin relied on in making the second Lewin affidavit.

96    I am satisfied, considering the evidence as a whole, that Villawood has established to the requisite prima facie standard that the 2012 DMA was not executed in about 2022, but instead was created in 2023. This is particularly in circumstances where the second Lewin affidavit effectively contains a bare assertion of Mr Lewin’s belief that the 2012 DMA was executed in about 2022 without any explanation as to the basis of Mr Lewin’s belief. No basis for Mr Lewin’s belief, or an explanation as to why no basis for Mr Lewin’s belief was contained in the second Lewin affidavit, was forthcoming. This prima facie evidence enables me to conclude that Villawood will have “some probability of success” on its case that the 2012 DMA was not created until sometime after the Unitholder Meeting on 23 or 24 February 2023. While the Johnson Parties submit that the supposed purpose in giving false evidence about when the 2012 DMA was executed is not explained or evident, the purpose would appear to be no different to the purpose of the false evidence given in the first Lewin affidavit; namely, to assert that Villawood was never entitled to management fees in respect of the Wallan Project.

97    It is relevant to address one further point. The Johnson Parties submitted that in assessing the relevant evidence, due regard was required to be had to the fact that the “correcting” affidavit was sworn by Mr Lewin and filed on behalf of the Johnson Parties at the same time as their defence was filed, prior to the first Lewin affidavit being read, and prior to any hearing of the injunction application. While this is a de novo review of Registrar Legge’s exercise of power, Registrar Legge noted at [52] of her reasons that the circumstance that the first Lewin affidavit had not been read before a correcting affidavit was filed was a “critical distinction” between this case and Tzouvelis.

98    In this respect, I accept Villawood’s submission that the fact that the first Lewin affidavit was not read makes no relevant difference to whether it attracts client legal privilege. For the reasons I have outlined above, I have inferred that Mr Johnson’s purpose in giving instructions to Mr Lewin in respect of Mr Lewin’s first affidavit was to create false evidence to assist Mr Johnson’s case. In those circumstances, no privilege can attach to the communication. I accept Villawood’s submission that where Mr Johnson’s instructions were in pursuance of an improper purpose when they were given, they cannot be retrospectively cured of that defect by the fact that the first Lewin affidavit was not read.

99    Further, as I have noted above, the evidence identified by Villawood establishes a prima facie case that the second Lewin affidavit may not have corrected the false evidence in the first Lewin affidavit, but rather one false piece of evidence was replaced by another piece of evidence that was either false, or not full and frank. The true position may be clarified by the documents produced pursuant to the MO Subpoena or will ultimately be a matter for trial.

100    For the reasons given, I am satisfied that Villawood has established, on a prima facie basis, that legal professional privilege does not attach to the documents produced in response to the MO Subpoena.

101    Having reached this determination, I do not propose to inspect the documents prior to making them available to Villawood. Inspection of the documents would appear to be of limited utility in the circumstances, given the conclusions I have already reached as to improper purpose, and considering the nature of the documents produced (identified in Annexure A to these reasons). However, the Johnson Parties have stated that the documents produced in response to the MO Subpoena contain material which is not responsive to the subpoena, such that the Johnson Parties submit it would be necessary and appropriate for the documents to be redacted if inspection was to be permitted. I accept that any material not responsive to the subpoena, and otherwise not necessary to provide context to the relevant communications, should be redacted.

4.    EXAMINATION APPLICATION

4.1    Further background

102    As outlined above, under the Examination Application, Villawood seeks to review Registrar Edwards’ exercise of power to dismiss Villawood’s interlocutory application dated 8 November 2024 to examine Mr Johnson as to the adequacy of the respondents’ compliance with order 1 of Registrar Edwards’ orders, made on 14 October 2024, concerning production of documents in respect of the Notice to Produce issued by Villawood on 27 August 2024.

103    The Notice to Produce was issued to all three respondents in the Wallan Proceeding and sought production of seven categories of documents, as follows:

1.    The original of the document styled “Development Management Agreement” dated 12 January 2012 (DMA), a copy of which appears at pages 219 to 268 of exhibit “SAL-1” to the affidavit of Stuart Andrew Lewin sworn 22 July 2024 [sic] and filed in proceeding VID640/2024 (Lewin Exhibit).

2.    All soft copies of the DMA in the form in which they are stored including all metadata associated with each copy.

3.    Any document dated or created between 12 January 2012 and 23 February 2023 which refers to the DMA.

4.    The original of the document styled “Wallan Pastoral” and dated 23 February 2023 (February 2023 Presentation) which appears at pages 269 to 284 of the Lewin Exhibit.

5.    All soft copies of the February 2023 Presentation in the form in which they are stored including all metadata associated with each copy.

6.    The original of the document styled “Moore Road and Wallan Pastoral Unit Holder Update Meeting Minutes” (February 2023 Minutes) which appears at pages 285 to 287 of the Lewin Exhibit.

7.    All soft copies of the February 2023 Minutes in the form in which they are stored including all metadata associated with each copy.

104    On 14 October 2024, Registrar Edwards ordered the respondents to produce “all documents that respond to” the Notice to Produce by 21 October 2024.

105    Between 21 October 2024 and 11 April 2025, the respondents, collectively, produced five tranches of documents responding to the Notice to Produce. Without seeking to outline the full extent of the back and forth between the parties in respect of each tranche of production, the production can be summarised as follows:

(a)    On 21 October 2024, Mills Oakley produced the first tranche of documents by email to the Registry. In the email to the Registry, the solicitor for Mills Oakley stated that there were no hard copy documents for production pursuant to the notice. This first tranche of production comprised of eight documents, and included only one version of the 2012 DMA, being the Mills Oakley version. Villawood submits that the production did not include a range of documents which would be expected to exist and be produced pursuant to the notice, including hard copy counterparts of the Lockwood version and Mills Oakley version of the 2012 DMA, and Word drafts of the 2012 DMA or the Unitholder presentation. Following this first tranche of production, and prior to the second Lewin affidavit, Villawood filed the application to examine Mr Johnson dated 8 November 2024;

(b)    On 4 March 2025, Mills Oakley made a further production of four additional documents on behalf of the Johnson Parties. Each of these documents were emails sent from a photocopier/scanner after a hard copy document was scanned, with the attachments to the emails being documents already produced as part of the first tranche. Villawood submits that the second tranche of production did not address the apparent gaps in production they had identified.

(c)    On 24 March 2025, Wallan Pastoral made production of documents to the Registry via email from MinterEllison. The production followed correspondence between Clayton Utz and MinterEllison where MinterEllison confirmed that Mr McCreadie (who had been appointed as an independent director of Wallan Pastoral) would undertake independent searches of the books and records of Wallan Pastoral. This third tranche of production comprised of 32 new documents, which included the Soft Copy version of the 2012 DMA.

(d)    On 25 March 2025, the day following the third tranche of production, Wallan Pastoral filed and served a further affidavit of Mr McCreadie which accompanied a further production of documents. This fourth tranche of documents comprised of an additional 13 documents, taking the total number of documents produced by Wallan Pastoral to 45 documents.

(e)    On 11 April 2025, the Johnson parties filed the affidavit of Mr Tandora, affirmed the same day. That affidavit exhibited an email dated 3 May 2023 from Beth Johnson to Kara Sabo which attached the Soft Copy version of the 2012 DMA, with no text in the subject and no text in the body of the email. This is, relevantly, the fifth tranche of production. This occurred shortly before Mr Bottrell produced documents on 14 April 2025 pursuant to the subpoena issued to him on 4 April 2025.

4.2    Consideration

106    Villawood submits that it has concerns about the production made by the respondents. It submits that its concerns regarding the extent of production should be viewed in light of the respondents’ unsatisfactory approach to the conduct of this proceeding more broadly, including in respect of the false evidence that the 2012 DMA was executed in 2012.

107    Villawood submits that Mr Johnson must personally answer to the examination as the order for production is against him personally as a party. Mr Johnson has not made an affidavit in the proceedings. Villawood also submits that, at all relevant times, Mr Johnson was a director of Marlton and Wallan Pastoral and should answer for them as the proper officer. Villawood accepted, in their written submissions, that the examination of Mr Johnson would be limited, and identified specific examples of the questions that they would seek to put to Mr Johnson.

108    In response to complaints made by Villawood, extensive affidavit evidence was filed deposing to the searches and enquiries that have been made by the Johnson Parties and Wallan Pastoral. The Johnson Parties, in Annexure B to their written submissions dated 23 July 2025, identified the evidence which describes the extensive searches that have been undertaken by the respondents and their lawyers, including in response to the complaints made by Villawood. I have, for convenience, reproduced that annexure as Annexure B to these reasons. I am satisfied that the affidavits relied upon by the Johnson Parties and Wallan Pastoral establish that there is no sufficient cause to doubt that the respondents understood what was required to be done in response to the Notice to Produce, and that they have made proper and reasonable searches and enquiries to locate the documents sought in the notice.

109    No sufficient basis has been established by Villawood to examine Mr Johnson in this case. The affidavits relied upon by the Johnson Parties and Wallan Pastoral describe in detail the extensive searches that have been undertaken of the various repositories of both electronic documents and hard copy documents. The affidavits detail the searches that have been undertaken by the responsible employees and officers of the respondents, which, in many instances, were repeated and checked by a number of individuals and by experienced lawyers at the two firms retained in the matter by the respondents, Mills Oakley and MinterEllison. There is, in the circumstances deposed to in the affidavits, no reason to doubt that the respondents have been properly advised of their legal obligations, and properly assisted, in relation to the Notice to Produce.

110    Insofar as Villawood submits that Mr Johnson must personally give evidence as to the creation, retention or destruction of documents, I do not accept that submission. That imposes an impermissible discovery or interrogatory exercise which goes well beyond the requirement for the respondents to make “proper and reasonable searches and enquiries”. The absence of direct evidence from Mr Johnson does not provide a basis to suspect that there has been non-compliance with the requirements of the Notice to Produce. In any event, Mr Tandora’s affidavit, made 11 April 2025, sets out Mr Johnson’s instructions in relation to the searches and enquiries that have been undertaken.

111    As noted above, Villawood, in its written submissions, accepts that the questions that may be asked of Mr Johnson (at this stage) are limited and provide specific examples of questions that would be asked. The Johnson Parties, in Annexure C to their written submissions, provide a table which identifies the evidence relating to the questions set out in Villawood’s submissions and provide detailed answers to each question. That annexure is reproduced as Annexure C to these reasons. The Johnson Parties also submit, by reference to this annexure, that it is not apparent why Mr Johnson would be the appropriate person to address the various matters identified by Villawood.

112    For the reasons given, Villawood has not discharged the onus it bears of establishing sufficient grounds for the exercise of the Court’s discretion because it is not established that there is sufficient cause to doubt that the respondents understood what was required to be done in response to the Notice to Produce, or that the scope of their enquiries was not proper and reasonable. The Examination Application will be dismissed.

4.3    Wallan Pastoral

113    I accept that Wallan Pastoral has appropriately and adequately complied with the Notice to Produce. No substantive relief is sought against Wallan Pastoral. The only relief sought against Wallan Pastoral is Villawood’s costs of the application.

114    Villawood’s insistence that Wallan Pastoral continue to participate in the Examination Application, in which no substantive relief is sought against it, is unjustified and inconsistent with Villawood’s obligations to the parties and to the Court under s 37N(1) and s 37M(1)(b) of the FCA Act. Villawood will pay Wallan Pastoral’s costs of the Examination Application.

5.    DISPOSITION

115    The parties are directed to confer and to submit to my chambers, by 4pm on 25 August 2025, proposed orders to give effect to these reasons for judgment.

Associate:

Dated:    21 August 2025

ANNEXURE A

ANNEXURE B

Overview of evidence as to searches conducted

ANNEXURE C

Overview of evidence relating to questions identified by Villawood