Federal Court of Australia

PPK Mining Equipment Pty Ltd v G.E.T. Engineering Pty Ltd [2026] FCA 599

ORDERS

THE COURT ORDERS THAT:

1.    No order be made that the applicant place the respondent on notice of any further requests for subpoenas it files.

2.    By 4.00pm on 20 May 2026, each party file short submissions of no more than three pages in length addressing the question of whether a costs order should follow Order 1 and, if so, on what basis.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    These reasons deal with a matter that has arisen from a case management hearing held on 1 May 2026. The respondent proposed that the case management orders include the following (proposed order):

The applicant place the respondent on notice of any further requests for subpoenas it files, with future requests for subpoenas and objections thereto, if any, to be managed within case management hearings.

2    The proposed order arose from the respondent’s concerns about nine subpoenas that had previously been issued by the applicant.

3    A further hearing was convened on 7 May 2026 to deal with this matter, prior to which the parties each filed brief written submissions. At the hearing, the respondent relied on two affidavits of Rhett Francis Peters, sworn on 14 April 2026 and 1 May 2026 respectively.

4    For the reasons that follow, I am not persuaded that such an order should be made. Consequently, I make an order that no order will be made for the applicant to place the respondent on notice of any further requests for subpoenas it files.

background and complaints

5    Nine subpoenas were filed in the Court on 20 March 2026. Requests for leave to issue those subpoenas had been filed on 2 March 2026 and referred to a Registrar on 12 March 2026. It would appear that leave was granted to the applicant on 19 March 2026 subject to two conditions. That resulted in the applicant lodging for filing the amended subpoenas on 20 March 2026, which were accepted on the same date.

6    Subsequently, orders have been made by a Registrar extending the time for compliance to 28 April 2026 (orders dated 15 April 2026) and for leave for inspection and uplifting of documents (orders dated 29 April 2026) in relation to four of those subpoenas that have already been answered.

7    The respondent has two broad complaints about what has occurred. First, that each of the subpoenas contains deficiencies. Secondly, that there have been other failures to comply with the Subpoenas and Notices to Produce Practice Note (GPN-SUBP). It was submitted that, in light of those deficiencies and failures, “it is desirable on case management grounds” that the proposed order be made. With such notice, it is submitted, the respondent will be able to raise issues about future subpoena requests and those issues might be dealt with efficiently “within the case management framework”. By this reference to case management, I understood the respondent to be suggesting that such issues might be dealt with in a way to avoid disruption to the sequencing and scheduling of other steps in the proceeding.

8    To elaborate on the first broad complaint, the respondent pointed to four alleged deficiencies with the content of the subpoenas and their requests:

(1)    The first three alleged deficiencies, which relate to eight of the nine subpoenas (not including the subpoena issued to J&T Accountants & Advisors Pty Ltd (J&T Accountants subpoena)), were that:

(a)    Paragraph [4] of those subpoenas did not confine the request to documents relating to the vehicle the subject of the claims in the proceeding (Driftrunners). By contrast, [1]–[3] and [5] were so confined. This was described by counsel for the respondent at the hearing as “the most telling point” and “the most serious example of noncompliance”.

(b)    The subpoenas are not limited to any given period of time, despite the allegations in the statement of claim relating to a period of time commencing in about 2022.

(c)    The requests for the subpoenas did not comply with, what was said to be, the “mandatory consideration” in [3.5(d)] of GPN-SUBP that the request make clear, in concise terms, “why it may not be possible or appropriate for the issuing party to obtain the documents / cooperation of the person to give evidence (as the case may be) through other procedures”. The respondent submitted that there has been a failure to comply with this requirement, particularly in light of the fact that standard discovery is in place and documents have been exchanged between the parties. It was submitted that, instead, the requests contain the disputed assertion that:

Given the Respondent has produced through discovery documents of the same kind requested from other participants in the market for Driftrunners, the Applicant does not apprehend any controversy regarding the nature, content or breadth of the request.

(2)    The fourth of the alleged deficiencies related to the J&T Accountants subpoena, which seeks production of any of the respondent’s accounting records “which evidence the manufacture, supply or sale of any Driftrunner parts and accessories by the Respondent to customers, including but not limited to … [there follows a list of documents]”. The respondent submitted that, in light of standard discovery, there has been non-compliance with [3.5(d)] of GPN-SUBP. That is because (a) standard discovery under r 20.14(1) of the Federal Court Rules 2011 (Cth) requires discovery of documents satisfying the conditions set out in that sub-rule, including that the documents “are, or have been, in the party’s control” (r 20.14(1)(c)) and (b) documents held by a company’s accountant are documents within the control of the company.

9    The second broad complaint was that the respondent was not given sufficient notice that the subpoena requests had been filed or the subpoenas issued. The respondent submitted that:

(1)    All the subpoenas were inherently likely to be of significant controversy, and it would have been appropriate for the applicant to have given the respondent notice of the requests when they were filed on 2 March 2026.

(2)    The respondent knew nothing of the requests when a case management hearing was held on 20 March 2026.

(3)    It was not until 1 April 2026 that the applicant informed the respondent of the filing of the subpoenas, by providing copies to the respondent. Copies of the requests for subpoenas were not provided to the respondent until 14 April 2026.

(4)    It is desirable that all future requests for subpoenas be provided to the respondent around the time of filing (preferably before filing). Future delays of six weeks between the filing of requests (2 March 2026) and the provision of copies of those requests (14 April 2026) are undesirable on case management grounds.

Legislative framework

10    “A subpoena may be issued only with the leave of the Court” and a party may apply for leave to “issue a subpoena without notice to any other party”: r 24.01(1) and (2) of the Rules (emphasis added). Rule 24.16(2) provides that “[t]he issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee” (emphasis added).

11    Rule 24.15 prescribes the process to set aside a subpoena. Relevantly, it provides:

24.15  Setting aside or other relief

(1) The Court may, on the application of 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.

…

12    The core requirements of the Rules are reinforced by GPN-SUBP. Paragraph [3.2] reiterates that a request may be made “without notice” and sets out circumstances where a party should consider providing notice prior to making the request. It states (emphasis added):

A Subpoena Request, whether oral or written, may be made without notice to the other parties or the addressee. If the Subpoena Request is likely to be of significant controversy, the issuing party should consider whether it would be appropriate to put the other parties and/or the addressee on notice prior to making the Subpoena Request.

13    Paragraph [4.7] reiterates that “[a]n issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee” (emphasis added), citing r 24.16(2) of the Rules.

14    Paragraph [3.5] sets out what information must be included in the request:

A Subpoena Request, whether oral or written, must also make clear, in concise terms, the basis for the request for leave, including:

(a) the apparent relevance and importance to the proceeding of the person to give evidence / documents the subject of the subpoena;

(b) the reasonableness of the request, including (to the extent known or anticipated) whether the request is practical to comply with and whether there is, or is likely to be, any issue of controversy regarding the nature, content or breadth of the request;

(c) whether sufficient notice has or will be given to the addressee. If an abridged period for service is sought, the Subpoena Request must nominate a particular date and explain the reason why short-service is appropriate and necessary in the circumstances;

(d) why it may not be possible or appropriate for the issuing party to obtain the documents / cooperation of the person to give evidence (as the case may be) through other procedures.

15    Paragraph [3.6] deals with the form in which the subpoena may be issued:

Following a Subpoena Request, the subpoena may be issued (with or without conditions) in the form requested or in an amended form, or may be rejected for issuing. Alternatively, the issuing party may be requested to provide further information, including by way of an affidavit before further consideration is given to the Subpoena Request.

16    Paragraph [6.1] deals with the precision with which a subpoena must be drafted:

A subpoena must not be drafted using unnecessarily wide or general terms. The subpoena must specify, with reasonable particularity, the documents to be produced and must avoid becoming a mechanism for “fishing” for evidence or documents. Broad subpoenas that contain imprecise or ambiguous terms may fail to obtain leave. Likewise, production sought in respect of time-periods or subject matter that appear irrelevant or lack connection to the issues in dispute in the proceeding may fail to obtain leave.

17    Paragraphs [6.5]–[6.8] deal with the process for return of subpoenas. Those provisions need not be set out. Paragraph [6.15] encourages parties to explore ways of resolving disputes relating to subpoenas at the earliest possible opportunity and consider the most efficient means for the issues to be heard or determined.

18    Part 7 of GPN-SUBP elaborates on the process for the resolution of applications to set aside subpoenas. Paragraph [7.1] states:

Applications to set aside a subpoena or seeking other relief in respect of a subpoena may be heard by the judge or by a registrar. Such applications are required to be made on notice to the issuing party and the Court may order that the person making the application give notice of the application to any other party or to any other person having a sufficient interest (r 24.15 of the Federal Court Rules).

19    Paragraphs [7.3]–[7.6] set out the process to consider objections to production or inspection of documents, whether by the addressee of the subpoena or someone else.

20    Thus, the Rules themselves set out the broad framework for subpoena requests, their content and the process for setting them aside. The GPN-SUBP elaborates on the core requirements, although it must be emphasised that a practice note is not “a Rule of Court or equivalent to a Rule of Court”: Cantor v Audi Australia Pty Limited (No 5) [2020] FCA 637 at [173] (Foster J).

consideration

21    The respondent does not seek to have any of the existing subpoenas set aside on the basis of the complaints outlined earlier in these reasons. Nor has any addressee to date sought to set aside any existing subpoena. Nor is there any objection to date to the production of documents in response to those existing subpoenas.

22    What the respondent seeks is an order that departs from the usual process prescribed by the Rules and GPN-SUBP for notifying any future subpoena requests. Rather than expecting the applicant to comply with the prescribed notification requirement, the respondent seeks an order that will, as a blanket rule, allow it to scrutinise each future request for subpoenas in advance of, or contemporaneously with, the request being filed. It would involve a significant departure from a basic premise of the framework prescribed by the Rules and GPN-SUBP that requests can be made without notice.

23    The respondent’s contention is that the complaints identified earlier in these reasons in relation to the history of the existing subpoenas provides the justification for modifying the notification rule for future subpoena requests. To make such an order, I would need to be persuaded that there is a good reason to displace the regulatory framework for future requests because of deficiencies identified in relation to existing subpoenas.

24    I am not so persuaded for the following reasons.

25    First, in relation to the first broad complaint:

(1)    The applicant conceded during the hearing that there was an inadvertent omission in paragraph [4] in eight of the nine subpoenas (see [8(1)(a)] above), and a consent order was made following the hearing on 7 May 2026 for the outstanding subpoenas to be modified and for that order to be served on the remaining addressees.

(2)    On the limited evidence before the Court, it is difficult to make an assessment of the claims that there has not been compliance with [3.5(d)] and [6.1] of GPN-SUBP, particularly given that the requestor is to make clear the basis of the request “in concise terms”. For example, it is not evident to me that, despite the absence of a specified time-period, the documents were not identified with reasonable particularity given that they are confined to documents relating to Driftrunners (leaving aside the error in paragraph [4]). Furthermore, as I also pointed out earlier in these reasons, provisions of a practice note are not to be treated like Rules of Court.

26    Secondly, in relation to the second broad complaint, I am not persuaded that there has been a contravention of any of the requirements. It is quite clear that there is no requirement to give notice before a request is filed. As I have said, that is a basic premise of the regulatory framework. Two relevant requirements arose:

(1)    To serve the respondent with a copy of the subpoena as soon as practicable after the subpoena was served on the addressee. On the evidence before me, it is unclear when the subpoenas were served on the addressees. The respondent’s submissions suggest that, at the time that the respondent was put on notice of the subpoenas (by email on 1 April 2026 with copies attached), not all the subpoenas had been served. Accordingly, I am not satisfied that there was any non-compliance with r 24.16(2) of the Rules or [4.7] of GPN-SUBP. Further, the respondent accepted in written submissions that “[t]here is no suggestion that the applicant will not comply with its obligation to serve the respondent with subpoenas to produce after they have been served on the subpoena recipients”.

(2)    To consider whether it would be appropriate to put the respondent on notice if the requests were likely to be of significant controversy. The terms of the subpoenas suggest that the applicant turned its mind to that question. Further, it must be again remembered that [3.2] of GPN-SUBP is not to be treated as a Rule of Court.

27    To the extent that there is a complaint that the respondent was misled by the letter on 1 April 2026 into thinking that the subpoenas were filed on 20 March 2026, it is not clear to me what consequence follows from such a suggestion if true. In any event, the statement is not inaccurate. While the requests were filed on 2 March 2026, leave to issue the subpoenas was given on 19 March 2026 and the subpoenas in amended form were lodged for filing on 20 March 2026. That process is within what is contemplated by [3.2] of GPN-SUBP.

28    Similarly, it is unclear to me what consequence follows from the failure of the applicant to inform the respondent of the subpoenas at the case management hearing before me on 20 March 2026 in circumstances where (a) the existing subpoenas were not matters for consideration at that hearing, (b) they were being managed by a Registrar, and (c) the requirement under r 24.16(2) of the Rules only arises once the addressees have been served. The service dates are unclear, but necessarily were to be times after the subpoenas were lodged for filing on 20 March 2026. I accept that [12.2] of the Central Practice Note: National Court Framework and Case Management (CPN-1) states that the parties are to confer in good faith to avoid the need for intervention by the Court to resolve an interlocutory dispute. However, in relation to subpoenas, the Rules and GPN-SUBP identify a clear framework that is to be followed by the parties.

29    Thirdly, I agree with the applicant’s submission that the extent to which the existing or future subpoenas might be deficient in other respects is a matter properly addressed though the processes of challenge and objection set out in the Rules and GPN-SUBP. There is no suggestion that those processes were (or will be) ill-equipped or inadequate, in the circumstances of this case, to warrant a blanket forward-looking rule for advance or contemporaneous notice.

30    Fourthly, while the complaints relate to nine subpoenas, eight of those subpoenas were in the same terms, and all of the subpoenas were requested on the same day. There is no suggestion that there is a pattern of behaviour that needs to be addressed.

31    Fifthly, while [6.15] of GPN-SUBP encourages parties to explore and consider efficient means to resolve disputes relating to subpoenas, that alone is no basis warranting an order from the Court against the opposition of one of the parties, particularly when practice notes are not to be treated as Rules of Court.

32    For these reasons, I am not persuaded that a blanket rule requiring advanced or contemporaneous notice of any future request for a subpoena is justified.

33    The two cases referred to by the respondent do not support its position. Tan v Commonwealth of Australia (Department of Defence) [2026] FCA 265 concerned an application for leave to issue a subpoena. The application was brought on notice: at [14]. However, contrary to what was submitted by the respondent, there is no indication that Vandongen J required the application to be heard on notice. Indeed, the principles expounded at [14] acknowledge that a party can apply to the Court for leave to issue a subpoena without notice to the other party, and this is something usually considered ex parte and in chambers. And, even if it were the case that his Honour required the application to be on notice, that was a circumstance arising on the facts of that case.

34    Further, while it was correct for the respondent to point out that case management was identified as a relevant consideration at [16] for the granting of leave to issue subpoenas, the question that has been raised by the proposed order is whether a blanket rule requiring notice in advance of, or contemporaneously with, a request is justified on case management grounds, not whether leave should be granted in respect of certain subpoenas.

35    In Spencer v Commonwealth of Australia [2014] FCA 1234, the application was to subpoena people to give evidence. The people identified included “two former Prime Ministers of Australia, a former Premier of New South Wales, a former Premier of Queensland, three current federal Members of Parliament, a current state Minister, two current state Members of Parliament, a number of former state and federal Members of Parliament, and a range of other individuals, some of whom [held] public office and some of whom [were] from private organisations”: at [5]. At [11], Mortimer J, as her Honour then was, said (emphasis added):

The Federal Court Rules 2011 (Cth) contemplate that the question of leave to issue a subpoena will usually be considered ex parte and in chambers: see r 24.01. Given the unusual circumstances of this case, the tight timeframes and an apprehension (which appears to have been well founded) that Mr Spencer may seek to issue a large number of subpoenas to a wide range of people, I determined it was appropriate to allow the respondents to be heard on the applications.

36    The circumstances of Spencer are far removed from those in this proceeding. And, in any event, that was a case involving a particular application for the issue of a subpoena in unusual circumstances. While I accept that her Honour also mentioned case management considerations as relevant to the exercise of the discretion to grant leave (at [20]), that does not take the respondent as far as it needs to go. For example, it is purely speculative at this point in time to suggest that the proposed order is needed to prevent delay in progressing the proceeding to trial.

37    I accept the thrust of the applicant’s submissions that Tan and Spencer support the position that applications for leave to issue subpoenas are generally considered without notice unless the circumstances require otherwise. I am not satisfied that a blanket rule should be adopted that would enable the respondent to scrutinise each subpoena request in advance of, or contemporaneously with, the filing of the request.

38    For similar reasons to those mentioned when dealing with case management considerations, the appeal to ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) does not take the matter any further.

conclusion

39    I am not persuaded that I should make the proposed order in departure from the regulatory framework in the Rules and GPN-SUBP. In light of my conclusions, it is not necessary to consider the other arguments raised by the applicant objecting to the proposed order.

costs

40    Each party sought an order for costs if successful, with the applicant seeking costs on an indemnity basis. The parties will be given a further opportunity to file short submissions dealing with the question of costs in light of what is said in these reasons.

Associate:

Dated:    13 May 2026