Federal Court of Australia

United Petroleum Pty Ltd v Qadir [2026] FCA 1565

ORDERS

THE COURT ORDERS THAT:

1.    The subpoena issued to the Commonwealth Bank of Australia in respect of Abdullah Qadir be varied so that it requires production only for the periods:

(a)    1 January 2021 to 28 February 2021; and

(b)    1 December 2021 to 31 May 2023.

2.    The subpoena issued to the Commonwealth Bank of Australia in respect of Max Saggar and Deepika Saggar be varied so that it requires production only for the period 1 April 2021 to 31 May 2022.

3.    The subpoena issued to National Australia Bank Limited in respect of Max Saggar and Deepika Saggar be varied so that it requires production only for the period 1 April 2021 to 31 May 2022.

4.    The parties have leave to uplift, inspect and copy the documents produced pursuant to the subpoenas referred to in orders 1 to 3 above to the extent those documents fall within the amended temporal scope identified in those orders, and subject to the limitations identified in order 5 below.

5.    In respect of any documents concerning an account held jointly by Max Saggar and Deepika Saggar:

(a)    Inspection be limited, in the first instance, to the legal representatives for the first applicant; and

(b)    If such documents are to be disclosed other than to the legal representatives for the first applicant, all transactions other than those involving the parties to the proceeding or entities identified in the third further amended statement of claim filed on 22 December 2025, or bearing the description “consultancy fees” or “gift”, be redacted.

6.    The Application to Review a Registrar’s Decision filed by the first respondent on 16 July 2026 be otherwise dismissed.

7.    The Application to Review a Registrar’s Decision filed by the second respondent on 16 July 2026 be otherwise dismissed.

8.    The Application to Review a Registrar’s Decision filed by the first applicant on 3 August 2026 be otherwise dismissed.

9.    The parties bear their own costs of and incidental to the applications referred to in orders 6 to 8 above.

10.    The matter be set down for trial at 10.15 am on 1 May 2028, on an estimate of two weeks.

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

REASONS FOR JUDGMENT

ROFE J:

1.    Introduction

1    Before the Court are three applications pursuant to ss 35A(5) and (6) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) seeking review of the orders made by a Registrar of the Court concerning three subpoenas issued at the request of the first applicant (United) to banking institutions. By a decision dated 15 July 2026 (D), the Registrar declined to set aside the subpoenas, but varied their temporal scope and granted leave for the parties to inspect documents produced by the addressees of the various subpoenas.

2.    The background to the proceeding

2    Before turning to set out and consider the applications which are the subject of these reasons, it is useful to set out the circumstances surrounding this proceeding which ground the current dispute.

3    The proceeding, which commenced on 28 October 2024, arises out of the allegations made by United and the second applicant (Mr Jadhav) (together, the applicants) concerning conduct allegedly engaged in by three former employees of United: the first respondent (Mr Qadir), the second respondent (Mr Saggar) and the third respondent (Mr Oza).

4    Mr Oza took no part in the present interlocutory dispute as he made no application and the applications raised no matters of relevance to him as the subpoenas related to bank accounts associated with Mr Qadir and Mr Saggar.

5    United conducts a business of selling fuel and other retail products through a network of service stations across Australia. For some of those service stations, United appoints a Commission Agent to operate the service station on its behalf pursuant to the terms of a commission agency agreement. Under that agreement, the Commission Agent is required to nominate a Premises Representative, who must be an officer of the Commission Agent and who is responsible for the overall management and control of the Commission Agent’s activities at the premises.

6    Between approximately November 2020 and September 2023, Mr Jadhav was the sole director and shareholder of NK ERA Pty Ltd and, between October 2021 and January 2023, of Nishraj Pty Ltd. During that period, he acted as Premises Representative and guarantor in respect of the Morayfield and Roma service stations in Queensland pursuant to commission agency arrangements entered into with United.

7    Mr Qadir was employed by United from March 2009 until November 2023 and ultimately held the position of Retail Operations Manager. Mr Saggar was employed by United between July 2019 and March 2024 in a number of roles, including Acting State Manager (Queensland), 2IC to the State Manager (Queensland) and Compliance Lead (Queensland). Mr Oza was employed by United in various retail operations support roles between January 2020 and March 2024.

8    The applicants allege that each respondent was required to comply with United’s Business Conduct Policy and with contractual, equitable and statutory duties arising from their employment. Those duties are alleged to have included employment duties and responsibilities, contractual duties of confidence, fiduciary duties, obligations arising under s 182 of the Corporations Act 2001 (Cth), and obligations arising under s 18 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth).

9    The allegations against Mr Qadir may broadly be divided into two categories. First, it is alleged that, between September 2020 and November 2023, he improperly authorised payments relating to building and maintenance contractors in circumstances including where invoices lacked supporting documentation, exceeded approval limits, had been split to circumvent approval thresholds, were for his own benefit or that of associates, or related to works not satisfactorily performed. Second, it is alleged that Mr Qadir and Mr Saggar induced Mr Jadhav to make periodic payments to them by representing that they could influence matters affecting his ability to obtain or retain commission agency appointments.

10    In relation to the latter allegations, the applicants allege that Mr Qadir and Mr Saggar represented to Mr Jadhav that, if he wished to obtain or retain a commission agency, he was required to make periodic consultancy fee payments to them. Those representations are alleged to have included claims that they could influence audit outcomes, breach notices, reporting to United’s head office, site changeovers, and the appointment or continued appointment of Commission Agents and Premises Representatives. It is further alleged that those representations were accompanied by threats concerning site changeovers and promises of future commission agency opportunities.

11    The applicants allege that, as a consequence of that conduct, Mr Jadhav paid $106,000 to Mr Qadir and $52,500 to Mr Saggar. It is further alleged that Mr Qadir and Mr Saggar acted jointly in procuring those payments, including by making representations to Mr Jadhav together and directing him to make payments to one or both of them (the alleged “joint enterprise”).

12    The applicants contend that the conduct alleged against Mr Qadir and Mr Saggar constituted breaches of employment duties and responsibilities and contractual duties of confidence, contraventions of s 182 of the Corporations Act and s 18 of the Australian Consumer Law, breaches of fiduciary duty, deceit, and unjust enrichment. They further allege that the respondents derived unauthorised profits from that conduct and that United and Mr Jadhav suffered loss and damage. The applicants seek declaratory relief, damages, compensation, equitable compensation, restitution, an account of profits, interest and costs.

13    Mr Qadir admits that Mr Jadhav paid him the sum of $81,000 from “December 2021 to May 2023”, but denies all other allegations, including making the representations set out in [40] of the 3FASoC (defined at [25] below). Mr Qadir also denies receipt of the sum of $25,000 paid “on or around 7 January 2021”. Mr Saggar denies all allegations against him.

14    Mr Qadir and Mr Saggar both claim the privilege against self-incrimination on the basis that the facts alleged by the applicants could constitute receipt or solicitation of a secret commission by an agent pursuant to s 442B of Sch 1 to the Criminal Code Act 1899 (Qld). As a consequence of their claim to privilege, neither Mr Qadir nor Mr Saggar will provide discovery or file evidence until the applicants have closed their case at trial.

15    The applicants also advance a separate case against Mr Oza arising from allegations that he received payments from prospective and current Commission Agents in exchange for promises concerning the award or retention of commission agency appointments. As those allegations are not material to the present applications, it is unnecessary to refer to them further. Accordingly, from this point onwards, references in these reasons to the “respondents” are references to Mr Qadir and Mr Saggar only, unless the context otherwise requires.

3.    The subpoenas

16    At the request of United, the Court issued three subpoenas on 29 April 2025, which are central to the applications.

17    The first subpoena was directed to the Commonwealth Bank of Australia and sought production of all bank statements or other documents recording payments into and out of accounts held by, controlled by, or associated with Mr Qadir during the period 1 January 2021 to 31 May 2023. I will refer to that subpoena as the CBA–Qadir Subpoena.

18    The second subpoena was directed to the Commonwealth Bank and sought production of all bank statements or other documents recording payments into and out of accounts held by, controlled by, or associated with Mr Saggar and his spouse, Deepika Saggar (Mrs Saggar), during the period 1 January 2021 to 31 May 2023. I will refer to that subpoena as the CBA–Saggar Subpoena.

19    The third subpoena was directed to the National Australia Bank (NAB) and sought production of substantially identical categories of documents in respect of accounts held by, controlled by, or associated with Mr Saggar and Mrs Saggar during the same period 1 January 2021 to 31 May 2023. I will refer to that subpoena as the NAB–Saggar Subpoena.

20    The present applications come before the Court following an extensive and lengthy interlocutory history.

21    Documents responsive to each subpoena were produced electronically to the Court during May 2025. Shortly thereafter, Mr Saggar and Mr Qadir each sought orders setting aside the subpoenas, by applications filed on 22 May 2025 and 2 June 2025, respectively (together, the set aside applications). By orders made on 18 June 2025, the Court directed that the produced documents were not to be uplifted, inspected or copied pending determination of those applications.

22    Had matters proceeded in the ordinary course, the set aside applications would likely have been determined by a Registrar in mid to late 2025. However, that did not occur. On 18 July 2025, the applicants filed a further amended statement of claim pursuant to leave previously granted. That pleading prompted separate interlocutory applications by Mr Qadir and Mr Saggar seeking strike out or other relief in relation to various aspects of the applicants’ case (together, the strike out applications). Directions were subsequently made for the conduct of those applications and extensive submissions were filed concerning the adequacy of the pleading.

23    The existence of those pleading disputes had a direct bearing upon the subpoena dispute. Whether a subpoena possesses a legitimate forensic purpose necessarily depends upon the issues raised by the pleadings. Until the challenges to the applicants’ pleading had been determined, there was a real prospect that the Court would be required to determine the subpoena objections by reference to a pleading which might subsequently change.

24    In those circumstances, the set aside applications were adjourned sine die pending determination of the strike out applications. The subpoena dispute therefore remained in abeyance while the parties argued about the form of the applicants’ pleaded case.

25    The strike out applications ultimately occupied the parties and the Court for several months. They were determined by another Registrar of the Court on 11 December 2025. The effect of the orders then made was that the applicants were required to file a consolidated third further amended statement of claim incorporating a number of amendments identified by that Registrar. The applicants subsequently filed the third further amended statement of claim on 22 December 2025 (3FASoC). The respondents have filed defences to the 3FASoC and the pleadings have closed.

26    It was only after that process had concluded that the subpoena dispute resumed. By consent orders made on 10 March 2026, the set aside applications were relisted for determination before a Registrar of the Court. Against that procedural backdrop, the set aside applications were heard on 10 June 2026 with reasons delivered on 15 July 2026. Given the nature of the present review applications, it is necessary then to summarise the substance of those reasons before turning to the competing review applications and the parties’ submissions.

4.    The Registrar’s decision

27    The Registrar approached the matter on the basis that the principal question was whether the documents sought pursuant to the subpoenas possessed apparent relevance to issues raised by the pleadings and were therefore capable of serving a legitimate forensic purpose: D [41]–[42].

28    The Registrar rejected the contention that the forensic utility of the subpoenas was exhausted by reason of the applicants already possessing payer-side banking records or, in the case of Mr Qadir, admissions concerning receipt of the pleaded payments. The Registrar considered that the issues raised by the pleadings extended beyond the bare fact of receipt and included questions concerning the purpose and character of the alleged payments, the circumstances in which they were said to have been solicited, the alleged joint enterprise between Mr Qadir and Mr Saggar, and the use and movement of funds following receipt: D [44]–[50].

29    The Registrar further accepted the applicants’ submission that recipient-side banking records may disclose information not otherwise evident from payer-side records, including transaction descriptions, references, account information and subsequent dealings with funds. In those circumstances, the Registrar was satisfied that the documents sought were capable of casting light on issues arising in the proceeding and therefore served a legitimate forensic purpose: D [45], [50].

30    The Registrar also rejected the respondents’ submissions that the subpoenas operated as an impermissible substitute for discovery. The Registrar held that third-party subpoenas and discovery perform different procedural functions and that the relevance of the records sought was not displaced by the possibility that some information may be available from another source: D [48].

31    Having concluded that the subpoenas possessed a legitimate forensic purpose, the Registrar nevertheless considered that their original temporal scope was too broad. The Registrar observed that the subpoenas must remain anchored to the pleaded allegations and that production extending beyond periods connected with the pleaded conduct carried a real risk of becoming an unjustified examination of personal banking activity: D [51]–[52].

32    The Registrar accepted that privacy concerns were relevant in determining the appropriate scope of production, particularly in relation to documents concerning Mrs Saggar, who is not a party to the proceeding. However, the Registrar did not regard those concerns as warranting the subpoenas being set aside altogether. Rather, the Registrar considered that the appropriate course was to confine their temporal operation: D [53]–[57].

33    The Registrar ultimately varied, rather than set aside, the subpoenas. The CBA–Qadir Subpoena was confined to the periods 1 January 2021 to 28 February 2021 and 1 November 2021 to 31 May 2023. The CBA–Saggar Subpoena and NAB–Saggar Subpoena were confined to the period 1 April 2021 to 31 May 2022. Consequently, the Registrar granted leave to uplift, inspect and copy documents produced pursuant to the amended subpoenas and no order was made as to costs given the mixed results of the set aside applications: D [60]–[64].

5.    The present applications

34    By applications dated 16 July 2026, Mr Qadir and Mr Saggar each seek review of the Registrar’s orders pursuant to ss 35A(5) and (6) of the Federal Court Act. Mr Qadir seeks to set aside the CBA–Qadir Subpoena, save that he accepts there is a proper forensic purpose for production in relation to the period 1 January 2021 to 28 February 2021. Mr Saggar seeks to set aside the CBA–Saggar Subpoena and the NAB–Saggar Subpoena or, alternatively, to confine those subpoenas to payments (if any) between Mr Jadhav, Mr Qadir, Mr Saggar and/or Mrs Saggar during the period 1 April 2021 to 31 May 2022.

35    By an application filed on 3 August 2026, United seeks review of the Registrar’s orders pursuant to s 35A(6) of the Federal Court Act insofar as they narrowed the scope of the subpoenas. United contends that the subpoenas should stand in the form in which they were issued and that leave should be granted to inspect the documents produced.

6.    Evidence

36    Mr Saggar relies upon the affidavit of his solicitor, Paul Michel Conrad, a lawyer at Saines Legal, affirmed on 22 May 2025 (the Conrad Affidavit). The Conrad Affidavit exhibits correspondence between the parties’ solicitors concerning Mr Saggar’s claims of privilege, his position concerning discovery and other compulsory processes, and United’s proposed issue of subpoenas.

37    United relies upon the affidavit of its solicitor, Henry Richard Skene, a partner at Seyfarth Shaw Australia, affirmed on 11 September 2026 (the Skene Affidavit). The Skene Affidavit addresses features of the Commonwealth Bank and NAB online banking platforms and exhibits publications and screenshots concerning transaction descriptions and references that may be entered when making transfers.

7.    Applicable principles

38    Under s 35A(5) of the Federal Court Act, a party has the right to apply for review of a Registrar’s decision. Section 35A(6) empowers the Court to determine such an application and make such orders as it thinks fit. It is well established that such a review proceeds by way of rehearing de novo: Bechara v Bates (2021) 286 FCR 166 at [17] (per Allsop CJ, Markovic and Colvin JJ). The Court must determine for itself afresh what orders should be made and any error on the part of the Registrar need not be demonstrated. The Court may receive evidence and submissions that were not before the Registrar: Pattison v Hadjimouratis (2006) 155 FCR 226 at [153]–[154] (per Lander J), quoted in Bechara at [20].

39    Rule 24.15 of the Federal Court Rules 2011 (Cth) empowers the Court to, upon application, set aside a subpoena in whole or in part or grant other relief in relation to it.

40    The applicable principles regarding subpoenas are well established and not in dispute between the parties. While the terminology used in the authorities varies somewhat, the fundamental principle is clear. The party issuing a subpoena must demonstrate that the subpoena serves a legitimate forensic purpose, and a subpoena may be set aside where it requires production of documents that lack apparent relevance to the issues in the proceeding: see Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd (2023) 418 ALR 284 at [37]–[38] (per Wheelahan, Anderson and Jackman JJ), discussing Wong v Sklavos (2014) 319 ALR 378 at [12] (per Jacobson, White and Gleeson JJ) and applying Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336.

41    The party issuing the subpoena bears the burden of demonstrating that the documents sought are sought for a legitimate forensic purpose and have a sufficient apparent relevance to the issues in the proceeding: Wong at [12]; Blacktown City Council at [73] (per Bell P). Apparent relevance is assessed primarily by reference to the pleadings and the issues they identify: Becwell Legal Services Pty Ltd, Re Griffin Energy Group Pty Ltd (Subject to Deed of Company Arrangement) v McMaster [2011] FCA 1501 at [27] (per Yates J). See also Blacktown City Council at [72].

42    In R v Barton [1981] 2 NSWLR 414 at 420, Cantor J observed the Court should take a realistic approach in assessing whether documents sought from a third party may relate to issues in the proceeding, and should not require production where any asserted connection rests on an unreal, fanciful or speculative basis. In Alister v The Queen (1984) 154 CLR 404 at 414, Gibbs CJ recognised that, whilst a subpoena cannot be employed for “a mere ‘fishing’ expedition”, the requisite connection between the documents sought and the issues in dispute need not be established with certainty. His Honour explained that it may be enough that it is “on the cards” that the documents sought will materially assist. Moreover, a subpoena will not satisfy the requirement of legitimate forensic purpose where it is deployed to ascertain whether a case exists, to obtain material for the purpose of formulating allegations, or as an impermissible substitute for discovery: Becwell at [28] (per Yates J); Wawryk v Mercedes-Benz Australia/Pacific Pty Ltd (Subpoena Ruling) [2024] VSC 120 at [17] (per Steffensen AsJ). Where a subpoena is wider than is justified by the issues raised in the proceeding, the Court may vary rather than set aside the subpoena: Seven Network at [41].

43    The Full Court in Aljazeera International (Malaysia) SDN BHD v Hun (2026) 315 FCR 570 at [112]–[114] (per Bromwich, Wheelahan and Owens JJ) considered what was meant by the term “fishing expedition”, concluding at [114] that:

[a]nother way of putting the position is that if a proceeding is commenced or a defence is filed without a proper basis then there is an abuse of process. And if discovery or the subpoena of documents is sought to ascertain whether a case exists when there is no evidence or reasonable expectation that a case does exist, then the documents will not be sought for a legitimate purpose and in that situation there will also be an abuse of process.

(Citations omitted.)

44    The authorities indicate that the determination of the appropriate scope of production requires a balancing exercise in which considerations of proportionality and privacy, together with the connection between the documents sought and the pleaded allegations, may properly be taken into account.

8.    The parties’ competing contentions

8.1    The scope of the legitimate forensic purpose requirement

45    United maintains that the subpoenas serve a legitimate forensic purpose because the banking records bear directly upon the allegations that Mr Jadhav made substantial payments to Mr Qadir and Mr Saggar over an extended period in circumstances where those payments are alleged to have been induced by representations, threats and promises concerning the retention and acquisition of commission agencies. United contends that the records the subject of the subpoenas are capable of illuminating not only the fact of payment but also the purpose, use and movement of the funds received, and the manner in which the alleged arrangement between the respondents operated. Relying upon the alleged joint enterprise, United submits that the recipient-side banking records may cast light on the alleged coordination between the respondents and, moreover, complete the picture of the alleged conduct, a picture which is currently incomplete notwithstanding the banking records presently available from Mr Jadhav.

46    United submits that the subpoenas serve six related forensic purposes. It contends that the records may:

(1)    cast light on whether, when and why payments passed from Mr Jadhav to Mr Qadir and Mr Saggar;

(2)    assist in identifying the extent of any profit allegedly derived by Mr Qadir and Mr Saggar from the conduct pleaded, and, in turn, the extent of losses suffered by the applicants;

(3)    reveal what became of the funds following receipt, including whether they were expended, shared between the respondents or dissipated to others, which would have a bearing upon what the Court would need to do when fashioning appropriate remedies;

(4)    disclose transaction descriptions or references bearing upon the purpose of the transfers;

(5)    cast light upon the nature and extent of the alleged joint enterprise; and

(6)    contribute more broadly to the evidentiary foundation supporting the pleaded allegations.

47    United further submits that the subpoenas seek to prove an existing pleaded case, and are not directed to ascertaining whether a cause of action exists where there is no evidence or reasonable expectation that a case does exist. This is particularly so, it contends, in circumstances where Mr Qadir and Mr Saggar have invoked the privilege against self-incrimination. The privilege against self-incrimination is a fundamental common law right which protects a person from being compelled to produce documents or answer questions that may expose that person to a criminal charge: Meneses v Directed Electronics OE Pty Ltd (2019) 273 FCR 638 at [85]–[86] (per Moshinsky, Wheelahan and Abraham JJ). United submits that, as a consequence of the respondents’ reliance upon that privilege, the applicants are required to prove their pleaded case without the benefit of discovery (or evidence) from Mr Qadir and Mr Saggar. Against that background, United contends that the subpoenas assume greater forensic significance because they are directed to matters already raised on the pleadings, including the receipt, purpose, use and movement of the impugned funds, the extent of any profits obtained, and the alleged joint enterprise between Mr Qadir and Mr Saggar. United contends that the documents sought may cast light on those matters and assist in proving allegations already advanced, rather than being used to determine whether a case exists at all.

48    United further submits that Mr Qadir’s admission that he received $81,000 from Mr Jadhav does not exhaust the forensic utility of the subpoenas. It contends that questions remain concerning the purpose, use and movement of those funds and the alleged joint enterprise involving Mr Qadir and Mr Saggar. United submits that the recipient-side banking records may reveal additional transactional detail bearing upon those issues, including information concerning the purpose of payments, the disposition of funds following receipt, the extent of any profit obtained and matters relevant to the relief sought. It further contends that the records are capable of supplementing incomplete records already in the applicants’ possession and contributing to the evidence required to substantiate the pleaded allegations.

49    Mr Qadir and Mr Saggar dispute that the subpoenas are directed to issues arising on the pleadings. They contend that the forensic purposes advanced by United extend beyond the pleaded case.

50    In particular, they submit that the pleadings do not allege that funds received by either respondent were subsequently transferred, pooled, shared, dissipated or otherwise dealt with between them. While the 3FASoC alleges that Mr Qadir and Mr Saggar acted together in soliciting payments from Mr Jadhav, they contend that the pleaded joint enterprise concerns a pattern of joint conduct directed to obtaining payments and does not extend to any allegation concerning the subsequent movement or handling of funds following receipt. The relief sought does not allege any profit from a joint enterprise; rather, “each of” the respondents is said to have profited by reason of the pleaded conduct. On that basis, they submit that recipient-side bank records are incapable of illuminating an issue raised by the pleadings insofar as the applicants seek to rely on those records to investigate how funds were used, expended, transferred or shared.

51    Counsel for Mr Qadir conceded that as Mr Qadir did not admit payment or receipt of the $25,000 alleged to have been paid on or around 7 January 2021, there was a proper forensic basis for the subpoena to be limited to 1 January 2021 to 28 February 2021.

52    Mr Qadir further submits that there is no live controversy concerning receipt of the $81,000 alleged at [45] of the 3FASoC, which he admits. He emphasises that United has already particularised each of the 19 payments said to comprise that amount, including the date, amount and payment description. In those circumstances, he contends that the CBA–Qadir Subpoena serves no legitimate forensic purpose in relation to those payments. Rather, he submits that United seeks to use the CBA–Qadir Subpoena to “trawl” for documents in the hope of uncovering additional material, contrary to the principles discussed in Fried v National Australia Bank Ltd (2000) 175 ALR 194 at [29] (per Weinberg J). He further submits that the applicants’ reliance upon the subpoena to “fill gaps” in existing records represents an impermissible attempt to obtain the practical equivalent of discovery through the subpoena process. In particular, Mr Qadir contends that the deficiency identified by United concerns payer-side records, not records held in relation to his accounts, and that any subpoena directed to remedying that deficiency should instead be directed to the relevant payer-side source.

53    Mr Saggar similarly submits that the only transactions capable of shedding light on the pleaded allegations are transactions between himself, Mr Jadhav, Mr Qadir and Mrs Saggar. He contends that the broader categories of transactions captured by the CBA–Saggar Subpoena and NAB–Saggar Subpoena do not assist in resolving any issue identified in the 3FASoC and instead amount to an examination of personal banking activity unrelated to the pleaded claims.

54    Both respondents further submit that the invocation of the privilege against self-incrimination does not itself establish a legitimate forensic purpose. They contend that the unavailability of discovery cannot lower the threshold requirement that the documents sought be connected to issues identified in the proceeding and cannot justify production extending beyond the scope of the pleaded case.

8.2    The forensic significance of recipient-side banking records

55    United submits that the recipient-side banking records are relevant because the applicants do not merely seek to establish that payments were made by Mr Jadhav to Mr Qadir and Mr Saggar. Rather, they seek to establish the purpose and character of those payments and the circumstances in which they were allegedly procured. United contends that records maintained by the Commonwealth Bank and NAB may contain transaction descriptions, references and other information that does not appear on the payer-side records relied upon by Mr Jadhav. It submits that such information may assist in determining whether the payments were made in connection with the representations, threats and promises alleged in the 3FASoC. In support of that contention, United relies upon the Skene Affidavit, which it submits demonstrates the capacity for different transaction descriptions to appear on payer-side and recipient-side banking records. United further contends that the records presently available to Mr Jadhav are incomplete, particularly in relation to payments allegedly made from an account held in the name of his former spouse, and that recipient-side records are therefore necessary to complete the evidentiary picture.

56    Mr Qadir disputes that any demonstrated forensic utility exists in the production of the recipient-side records. He submits that the Skene Affidavit does not establish that any materially different transaction descriptions exist in relation to the payments pleaded in this proceeding. He further submits that the affidavit addresses the functionality of banking systems as at September 2026 and does not establish what information was recorded on the transactions in issue during the relevant period. He contends that the deficiency identified by United concerns allegedly incomplete records held by Mr Jadhav or his former spouse and not any deficiency in the recipient-side records. He submits that the existence of a gap in the applicants’ own records does not justify compulsory production of his personal banking records.

57    Mr Qadir also submits that United’s contention that recipient-side records may reveal additional information about the purpose of the payments remains speculative because there is no evidence that any such information exists. He contends that the possibility that different transaction descriptions may be recorded is not a sufficient basis for access to banking records covering an extended period.

58    Mr Saggar similarly submits that United does not identify any concrete basis for concluding that recipient-side records materially differ from payer-side records. He contends that the pleadings already identify the payments allegedly made by Mr Jadhav and that United does not explain how recipient-side records would materially assist by providing information beyond that already available in relation to those transactions. Mr Saggar further submits that, if recipient-side records are capable of serving any forensic purpose, that purpose is sufficiently addressed by confining production to transactions between himself, Mr Jadhav, Mr Qadir and Mrs Saggar, rather than permitting inspection of the entirety of the banking records sought by the subpoenas.

59    More generally, both respondents submit that United’s reliance on recipient-side records proceeds on an assumption that the records may reveal information not presently known to the applicants. They contend that this reflects an attempt to investigate whether additional facts exist, rather than obtain evidence directed to issues already articulated on the pleadings.

8.3    The temporal scope of the subpoenas

60    United submits that the period from 1 January 2021 to 31 May 2023 reflects the period over which the relevant conduct is alleged to have occurred. It points to its allegations that Mr Qadir made representations, threats and promises to Mr Jadhav during that period and that Mr Saggar likewise made representations, threats and promises over substantial parts of the same period. United submits that the subpoenas are therefore directed not merely to the dates upon which payments are alleged to have been made, but to the broader period during which the alleged demands for payment were made and acted upon. It contends that records surrounding the alleged payments may cast light on the purpose and character of those payments and the circumstances in which they were received.

61    United further submits that the temporal scope is justified because the proceeding concerns an ongoing arrangement pursuant to which payments were allegedly procured from Mr Jadhav, rather than a series of discrete and unrelated transactions. It contends that confining production solely to the dates of the alleged payments risks excluding records capable of shedding light on the surrounding circumstances in which those payments were made. United further relies upon its allegation that Mr Qadir and Mr Saggar acted together in a joint enterprise and submits that the relevant time period must therefore be assessed by reference to the duration of that alleged course of conduct rather than only the dates on which particular payments were made.

62    Mr Qadir submits that the CBA–Qadir Subpoena extends into periods for which the 3FASoC identifies neither payments nor relevant conduct. He places particular emphasis on the period between the alleged payment of $25,000 made on or around 7 January 2021 and the later payments alleged to have been made from late 2021 onwards (see [64] below). He contends that there is a nine-month period for which no payment or other linking circumstance is pleaded and submits that no legitimate forensic purpose has been identified for obtaining banking records covering that period.

63    Mr Qadir further submits that the Registrar’s finding of apparent relevance was expressly qualified and did not justify production across the whole period originally sought. He contends that the finding that documents may cast light on issues in the proceeding does not, without more, authorise production extending beyond the periods supported by the pleadings. He submits that where a subpoena extends into periods for which no conduct, payment or other linking circumstance is pleaded, there is a real risk that it ceases to operate as a targeted forensic tool and instead becomes an impermissible fishing expedition.

64    Mr Qadir also submits that, although the 3FASoC now alleges that further payments were made between approximately September and December 2021, those allegations were introduced only after objections had been raised to the breadth of the subpoenas. He contends that those amendments do not justify production across the entirety of the period sought and that the CBA–Qadir Subpoena remains directed to periods for which no sufficient forensic purpose has been demonstrated.

65    Mr Saggar submits that the temporal scope of the CBA–Saggar Subpoena and NAB–Saggar Subpoena must remain anchored to the pleaded allegations. He contends that the only payments alleged to have been made to him occurred between May 2021 and April 2022 and that no forensic purpose has been demonstrated for obtaining banking records outside that period. He submits that the allegations concerning representations, threats and promises do not provide a sufficient basis for production extending substantially beyond the period during which payments are alleged to have been received.

66    In the alternative, Mr Saggar submits that, if the CBA–Saggar Subpoena and NAB–Saggar Subpoena are not set aside, they should be confined to a period approximately corresponding with the alleged payments, namely 1 April 2021 to 31 May 2022. He contends that any broader period captures substantial volumes of banking information for which no apparent relevance to the issues raised on the pleadings has been established.

8.4    Privacy and proportionality

67    United submits that privacy concerns do not justify limiting access to documents that are otherwise apparently relevant to the issues raised by the 3FASoC. United contends that the proceeding concerns allegations that Mr Jadhav made payments to Mr Qadir and Mr Saggar in consequence of representations, threats and promises made by them concerning the acquisition and retention of commission agencies. United submits that, where documents are capable of shedding light on those allegations, the interests of a litigant in obtaining relevant evidence prevail over competing privacy concerns, relying on the following passages in R v Barton at 419 (per Cantor J):

It seems to me that there is involved within this field the resolution by the court of competing interests. To require a witness to produce to the court his documents in proceedings in which he is not a party and in which he has no interest must involve an invasion of his private rights including his right to privacy and his right not to be required to busy himself seeking, identifying, bringing together and producing his documents to the court.

The other right which seems to me to be involved is the right of a party to litigation to obtain access to documents, even where they are in the possession of a stranger, in order to further the ends of justice in those proceedings so that he may advance his case on all issues in the case. These respective rights of the stranger and the litigant will generally conflict.

[…]

The Court will consider the nature of the documents specified and will determine as best it can the issues likely to arise. If it appears an issue may arise in litigation to which the documents may relate than I believe the right of the litigant should prevail over the right of the witness. Unless it appears that an issue may arise to which the documents may relate then the right of the witness will prevail.

(Emphasis added by United.)

68    United further submits that any intrusion upon privacy is ameliorated by the Court’s procedures governing subpoenaed material. It contends that documents produced pursuant to subpoena are subject to the Harman undertaking (taking its name from Harman v Secretary of State for the Home Department [1983] 1 AC 280) and may be used only for the purposes of the proceeding. In those circumstances, United submits that privacy concerns do not provide a basis for denying access to documents that otherwise possess apparent relevance.

69    United also submits that the Registrar erred in treating privacy concerns as a basis for narrowing the subpoenas. It contends that, having accepted that the documents sought possess apparent relevance, privacy considerations do not justify restricting production of documents otherwise relevant to the issues in dispute. United submits that the periods and categories of documents sought correspond with the allegations advanced in the 3FASoC and that the respondents’ privacy concerns do not outweigh the applicants’ interest in obtaining evidence relevant to those allegations.

70    Conversely, Mr Saggar submits that privacy remains a relevant consideration in determining the appropriate scope of production. He places particular emphasis on the fact that the CBA–Saggar Subpoena and NAB–Saggar Subpoena extend beyond accounts held in his own name and also encompass accounts held by Mrs Saggar, together with accounts for which either is or was an authorised signatory. He contends that the subpoenas therefore expose substantial volumes of personal banking information unrelated to the issues arising in the proceeding and disclose information concerning persons who are not parties to the litigation.

71    Mr Saggar submits that proportionality considerations favour confining production to transactions involving himself, Mr Jadhav, Mr Qadir and Mrs Saggar, and to the period during which the alleged payments are said to have occurred. He contends that the broader categories of transactions captured by the subpoenas disclose personal financial dealings for which no demonstrated connection to the pleaded allegations has been established.

72    Mr Saggar further submits that the implied undertaking moderates but does not eliminate the privacy concerns arising from disclosure of banking records. He contends that the CBA–Saggar Subpoena and NAB–Saggar Subpoena expose a broad range of personal transactions having no demonstrated connection with the claims advanced by the applicants and therefore that privacy interests remain relevant when determining the appropriate scope of production.

73    Mr Qadir similarly submits that proportionality assumes particular significance in circumstances where he admits receipt of a substantial proportion of the payments alleged by the applicants and where the 3FASoC does not allege that monies received by either himself or Mr Saggar were subsequently transferred, shared or otherwise dealt with in any particular manner. He contends that the breadth of the subpoenas permits inquiry into personal banking activity extending beyond the issues raised on the pleadings and is disproportionate to the matters genuinely in dispute.

74    More generally, the respondents submit that privacy concerns cannot be considered in isolation from the scope of the asserted forensic purpose. They contend that where the subpoenas seek access to broad categories of personal banking records directed to matters not pleaded or not genuinely in dispute, considerations of privacy and proportionality reinforce the conclusion that the scope of production should be confined.

75    Senior counsel for Mr Saggar raised a further proportionality consideration based on s 37M of the Federal Court Act, and in particular the overarching purpose to facilitate the resolution of disputes as quickly, inexpensively and efficiently as possible, and the objective to resolve disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. He submitted that the amounts alleged to have been paid to Mr Qadir and Mr Saggar, namely, the pleaded payments totalling $158,500, whilst a significant sum to the respondents, were relatively modest both to United and in the context of Federal Court litigation. It was submitted that United, cognisant of the disparity between the parties’ ability to fund the litigation, and of the parties’ obligations to act in accordance with the overarching purpose, should have started with subpoenas seeking the much narrower timeframe, instead of starting with an unjustifiably broad timeframe and forcing the respondents to seek that the subpoenas be set aside or narrowed. Further, he submitted that a more appropriate time to issue the subpoenas would have been after the applicants filed their evidence.

8.5    Inspection of the documents

76    Mr Qadir submitted that, if I considered that the subpoenas had a legitimate forensic purpose, I should inspect the documents produced before making a final decision as to whether access should be granted. Relying on the decision from the Victorian Supreme Court of Appeal in Woolworths Ltd v Svajcer [2013] VSCA 270 at [43]–[45] (per Nettle, Ashley and Neave JJA), he submitted that inspection would permit the Court to assess whether the documents in fact contained information capable of advancing the forensic purposes asserted by the applicants and to assess any privacy concerns arising from the disclosure of personal banking records.

9.    Consideration

77    The parties advanced a number of submissions concerning the scope of the pleaded case, the alleged joint enterprise, the forensic significance of recipient-side banking records, privacy, proportionality and the timing of the subpoenas. In my view, the present applications ultimately turn on three issues: whether the subpoenas serve a legitimate forensic purpose, whether their temporal scope should be confined by reference to the pleaded allegations, and whether any limitations should be imposed to address privacy concerns.

9.1    The CBA–Qadir Subpoena

78    The central question is not whether the applicants have pleaded a serious case against Mr Qadir, but whether the documents sought by the CBA–Qadir Subpoena are apparently relevant to the issues genuinely raised in the pleadings, and therefore sought for a legitimate forensic purpose. That assessment must be undertaken by reference to the case the applicants have chosen to plead, and not by reference to matters which may emerge in the future.

79    At the hearing, counsel for Mr Qadir accepted that there was a proper forensic purpose for production of the banking records surrounding the time of the alleged payment of $25,000 made on or around 7 January 2021 because receipt of that payment has not been admitted by Mr Qadir.

80    I do not accept, however, that Mr Qadir’s admission of receipt of the pleaded payments totalling $81,000 deprives the subpoena of any forensic utility in relation to those payments. The applicants are not confined to proving the mere fact of payment. The pleaded issues extend to the character, purpose and circumstances of the payments said to have been made by Mr Jadhav, and their receipt, and banking records concerning the period during which those payments are alleged to have been made may bear upon those issues.

81    The pleaded period for the alleged payments to Mr Qadir covers the period January 2021 to May 2023. However, as Mr Qadir submits, there is a gap between the first alleged payment on or around 7 January 2021 and the next pleaded and clearly particularised payment in December 2021. I consider that the period 1 December 2021 to 31 May 2023, which covers the admitted payments, provides a confined buffer around the alleged payments without extending beyond the pleaded period, and that bank records from that period may cast light on the context, timing, purpose, receipt and treatment of those payments.

9.2    The NAB–Saggar and CBA–Saggar Subpoenas

82    Mr Saggar does not admit the payments alleged to have been made to him. Instead, he claims the privilege against self-incrimination and reserves the right to advance material in support of his defence only after the applicants close their case. In communications with the applicants’ lawyers, Mr Saggar has made it clear that he will not provide discovery or file evidence prior to the close of the applicants’ case. In those circumstances, bank records of accounts to which Mr Saggar had access during the period in which the alleged payments were made are clearly relevant to the receipt of any alleged payments.

83    The pleaded period for payments to Mr Saggar does not extend past May 2022. As the Registrar noted at D [51], “[t]he temporal scope of each subpoena must remain anchored in the pleaded allegations”. In circumstances where the alleged payments to Mr Saggar are confined to the period May 2021 to April 2022, I am not satisfied that a sufficient forensic purpose has been demonstrated for production substantially beyond it. Accordingly, the period of production pursuant to the CBA–Saggar Subpoena and NAB–Saggar Subpoena should align with the pleaded period for the payments plus a confined buffer, namely 1 April 2021 to 31 May 2022, rather than extending for a further year beyond that.

84    From a brief inspection of the documents produced, Mr Saggar’s principal transactional account is the joint account he shares with his wife, Mrs Saggar, which includes details of her personal expenditure and salary. To protect Mrs Saggar’s privacy, I will order that access to the joint account documents be provided on a “lawyers only basis”. If those documents are to be disclosed other than to United’s lawyers, all transactions other than those involving the parties to the litigation or entities identified in the 3FASoC, or bearing the description “consultancy fees” or “gift”, must first be redacted.

85    Subject to those limitations, I am satisfied that the CBA–Saggar Subpoena and the NAB–Saggar Subpoena serve a legitimate forensic purpose and should be confined to the period 1 April 2021 to 31 May 2022.

10.    Disposition

86    I am satisfied that, if limited to the dates specified above, the subpoenas have a legitimate forensic purpose. I am also satisfied that Mrs Saggar’s privacy concerns are adequately dealt with if disclosure of any records of accounts held jointly with Mrs Saggar is restricted in the manner outlined above.

87    Accordingly:

(a)    the CBA–Qadir Subpoena should be limited to the periods 1 January 2021 to 28 February 2021 and 1 December 2021 to 31 May 2023, and the production of materials confined accordingly; and

(b)    the CBA–Saggar Subpoena and NAB–Saggar Subpoena should be limited to the period 1 April 2021 to 31 May 2022.

88    The parties each achieved a measure of success on the review applications. United succeeded in resisting the respondents’ primary contention that the subpoenas should be set aside. Equally, the respondents succeeded in obtaining further limitations upon the temporal scope of the subpoenas. In those circumstances, I consider that the appropriate order is that each party bear its own costs of the review applications.

Associate:

Dated:    20 October 2026