Astral Land Pty Ltd v Golden Commercial Pty Ltd [No 2]
[2013] WASC 368
•9 OCTOBER 2013
ASTRAL LAND PTY LTD -v- GOLDEN COMMERCIAL PTY LTD [No 2] [2013] WASC 368
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 368 | |
| Case No: | CIV:2239/2011 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 9/10/13 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Subpoenas ambit narrowed or set aside in part | ||
| B | |||
| PDF Version |
| Parties: | ASTRAL LAND PTY LTD GOLDEN COMMERCIAL PTY LTD LUAN MAY WONG LAKEBRIDGE HOLDINGS PTY LTD LIAS ARIPIN WELLINGTON PARKLAND PTY LTD |
Catchwords: | Subpoenas Production issue Objection to production Broad temporal scope of subpoenas exceeding a decade Objection as to the result Temporal range of subpoenas confined |
Legislation: | Federal Court Rules 1979 (Cth) Federal Court Rules 2011 (Cth) Rules of the Supreme Court 1971 (WA), O 36B r 4, O 36B r 5 |
Case References: | Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 (S) Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273 Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273 (S) Astral Land Pty Ltd v Wellington Parkland Pty Ltd [No 2] [2013] WASC 177 Australian Gaslight Co v Australian Competition Consumer Commission [2003] FCA 1101; (2003) ATPR 41-956 Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 Heugh v Central Petroleum Ltd [No 2] [2013] WASC 323 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 6] [2012] WASC 450 Stanley v Layne Christensen Company [2004] WASCA 50 Wong v Aripin [2011] WASC 174 Wookey v Quigley [No 5] [2011] WASC 275 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GOLDEN COMMERCIAL PTY LTD
First Defendant
LUAN MAY WONG
Second Defendant
LAKEBRIDGE HOLDINGS PTY LTD
Third Defendant
- First Plaintiff
LIAS ARIPIN
Second Plaintiff
AND
WELLINGTON PARKLAND PTY LTD
First Defendant
LUAN MAY WONG
Second Defendant
Catchwords:
Subpoenas - Production issue - Objection to production - Broad temporal scope of subpoenas exceeding a decade - Objection as to the result - Temporal range of subpoenas confined
Legislation:
Federal Court Rules 1979 (Cth)
Federal Court Rules 2011 (Cth)
Rules of the Supreme Court 1971 (WA), O 36B r 4, O 36B r 5
Result:
Subpoenas ambit narrowed or set aside in part
Category: B
Representation:
CIV 2239 of 2011
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : DLA Piper
First Defendant : Bennett & Co
Second Defendant : Bennett & Co
Third Defendant : Bennett & Co
CIV 2518 of 2011
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
First Plaintiff : DLA Piper
Second Plaintiff : DLA Piper
First Defendant : Bennett + Co
Second Defendant : Bennett + Co
Case(s) referred to in judgment(s):
Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304
Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274
Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 (S)
Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273
Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273 (S)
Astral Land Pty Ltd v Wellington Parkland Pty Ltd [No 2] [2013] WASC 177
Australian Gaslight Co v Australian Competition Consumer Commission [2003] FCA 1101; (2003) ATPR 41-956
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Heugh v Central Petroleum Ltd [No 2] [2013] WASC 323
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 6] [2012] WASC 450
Stanley v Layne Christensen Company [2004] WASCA 50
Wong v Aripin [2011] WASC 174
Wookey v Quigley [No 5] [2011] WASC 275
1 KENNETH MARTIN J: CIV 2239 of 2011 (the Golden Commercial action) and CIV 2518 of 2012 (the Wellington Parkland action) are matters which have been case managed in my CMC List since 2011. The two actions are case managed in conjunction with a defamation action, CIV 1550 of 2011 in which Mrs Luan May (Mimi) Wong, first plaintiff, and her husband Howard Sugiarso, second plaintiff, bring action against Mr Lias Aripin as defendant.
2 My reasons for decision in Wong v Aripin [2011] WASC 174 explain at [3] - [7] an underlying incident at the Burswood Intercontinental Resort Hotel on the morning of 9 June 2010 which has not only given rise to that defamation action but also, thereafter, to the Golden Commercial action and the Wellington Parkland action.
3 The Golden Commercial action and the Wellington Parkland action both have very considerable interlocutory antecedents I refer to my prior interlocutory reasons for decision in both actions: Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273; Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273 (S); Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274; Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 (S) and Astral Land Pty Ltd v Wellington Parkland Pty Ltd [No 2] [2013] WASC 177. Those earlier reasons essentially canvass the considerable difficulties the respective plaintiffs faced in filing a coherent, and rule compliant, statement of claim in both matters. There were numerous iterations of statements of claim in both actions. Finally however, after periods in excess of 12 months there emerged, by a process of attrition, pleadings from the plaintiffs sufficient to provide the foundation from which the defendants could be required to plead their defences. To date this has not yet occurred for various reasons, although I have now programmed the defences to be filed by Monday, 4 November 2013.
4 I note that, in circumstances of the plaintiff's representational causes of action and given the non-English familiarity of many of the natural person participants I took the unorthodox step of requiring the plaintiffs to file their non-expert witness statements (with accompanying, certified translations to English) just after the filing of the (eventual) final statements of claim in each action. Likewise, counterpart directions have been made which will require the defendant to file each non-expert witness statement, shortly after filing each defence pleading.
5 It is a considerable understatement to say that both actions are complex. Each seeks to raise numerous causes of action. In the Golden Commercial action the current iteration of the plaintiffs' statement of claim (dated 13 September 2012) runs to 58 pages. The Wellington Parkland action is slightly smaller in scale running to 49 paragraphs across 42 pages (see a Substituted Statement of Claim filed 20 September 2013).
6 From the above it will be apparent:
(a) both actions are, notwithstanding interlocutory disputation, still in the early to mid-phases in terms of their progression to a trial;
(b) the defendants have not yet filed their pleading defence (and/or counterclaim) in either action. This is now anticipated by Monday, 4 November 2013;
(c) as against each other the parties have not provided discovery, although a regime for the exchange of non-expert witness statements is partly complete and should be complete by 18 November 2013;
(d) trial dates for a joint trial of the three actions (the Golden Commercial action, the Wellington Parkland action, plus Ms Wong's defamation action against Mr Aripin) are not yet set but the three actions have been programmed on the basis that they all proceed to a joint trial (of some months' duration) at a time to be fixed.
7 The presently contentious issue which has arisen in both the Golden Commercial and Wellington Parkland actions relates to certain pre-trial document subpoenas issued by the plaintiffs to the long-standing accountant for Golden Commercial Pty Ltd and for Wellington Parkland Pty Ltd, namely Mr Charles Napoli of the Perth accounting firm Barringtons.
8 It is apparent both parties have issued a number of pre-trial document subpoenas in each of the actions. I note that there has been, or at least appears to have been, a good measure of conferral and co-operation as between the parties in these actions taken towards clarifying and resolving numerous potentially problematic issues in relation to a number of the subpoenas. Of those, compromises reached include agreements about inspection, confidentiality, omitting irrelevant material from the scope of a subpoena and the like.
9 As regards Mr Napoli, the parties have been unable to resolve a dispute of principle concerning the temporal scope of pre-trial document subpoenas he was served with from the Astral plaintiffs in the Golden Commercial action and the Wellington Parkland action. The ambit of the subpoenas is similar at least in terms of their formulation - although, of course, they need to be evaluated against the precise presenting circumstances and the issues of apparent relevance in each action.
10 The residual issue of controversy in respect of both document subpoenas directed to Mr Napoli concerns the temporal scope of each request for documentation. As I explain, in each case the plaintiffs have sought documents from Mr Napoli by a wide-ranging request which has been framed in part by reference to a defined term 'Period'. This timeframe spans the whole time between Mr Napoli's first professional engagement, either by Golden Commercial Pty Ltd or by Wellington Parkland Pty Ltd, (this is agreed as roughly March 2003) until the date of issue of the subpoenas. Both subpoenas were issued by the plaintiffs' lawyer on 4 July 2013. The scope of each command therefore exceeds a period of 10 years in each case.
11 I will note two further things at the outset. First, there has, as I have indicated, been a good measure of conferral and co-operation between the respective parties to these actions as regards answering numerous pre-trial document subpoenas, notwithstanding that most subpoenas would appear to have been directed to non-parties. Conferral about such issues is appropriate between the parties (see generally as to conferral concerning subpoenas, Le Miere J's recent observations in Heugh v Central Petroleum Ltd [No 2] [2013] WASC 323 [10]).
12 Second, in the present circumstances the pre-trial document subpoena recipient Mr Napoli, has not himself raised (at least formally) any objections to answering the subpoenas the Astral plaintiffs have caused to be served upon him. Nevertheless, the defendants have also been served with copies of the subpoenas to Mr Napoli in accord with O 36B r 5(2) of the Rules of the Supreme Court 1971 (WA) (as to service compliance with that rule, see my recent reasons for decision in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 [6], [45]).
13 The defendants, having had proper notice of the pre-trial documents subpoenas served upon Mr Napoli as their accountant, have raised objection not to the whole subpoena but only to an aspect of its temporal breadth. As parties to the action the defendants have the standing to apply to set aside a subpoena in whole or in part, or to seek other relief in respect of the subpoena (see O 36B r 4(1) of the Rules of the Supreme Court).
14 Pre-trial document subpoenas may now be issued without leave of the court. Nevertheless, case management considerations are important in exercising proper control and oversight over a process that has the capability of significantly increasing the cost of litigation and considerable potential for third party inconvenience or abuse (see Wookey v Quigley [No 5] [2011] WASC 275 [35] - [38]).
15 I now propose to briefly discuss some well-known principles of law concerning the answering of pre-trial document subpoenas, particularly in relation to a relatively low threshold of apparent relevance which must govern any pre-trial determination about the nature of the material open to be requested under this compulsive process of the court.
Principles of law
16 These principles have been well canvassed in recent times. I would refer first to the comprehensive collection of the principles by Beech J in Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] - [21] (see particularly from his Honour's heading 'Principles governing inspection of subpoenaed documents'). Those principles there stated echo his Honour's earlier comprehensive analysis in Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 [20] - [31]. At [27] his Honour mentions a decision Australian Gaslight Co v Australian Competition Consumer Commission [2003] FCA 1101; (2003) ATPR 41-956 [8] where French J (as he then was) said (in the context of the Federal Court Rules 1979, now repealed and replaced with Federal Court Rules 2011) where leave to issue a pre-trial document subpoena was required:
It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.
17 Of course, leave to issue a pre-trial document subpoena is generally no longer necessary in this court. Nevertheless, case management considerations do remain relevant and the observations made by French J, therefore continue to provide helpful insights towards proper evaluations where objection to answering a subpoena is raised.
18 I also mention the recent decision of Le Miere J in Heugh v Central Petroleum particularly concerning his Honour's observations at [13] and following as regards the issue of legitimate forensic purpose. There his Honour referred back to the leading decision of the Court of Appeal in Stanley v Layne Christensen Company [2004] WASCA 50 [9] reiterating four key principles as:
1. do the documents give rise to a line of enquiry;
2. whether the documents are required for a fair disposal of the action;
3. do the documents allow the parties to appraise the strengths and weaknesses of their and their opponents' case; and
4. all relevant documents should be made available to the parties.
19 Concerning a narrowing of a document subpoena by amendment, I would also mention the observations of Edelman J in Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 6] [2012] WASC 450 [11] - [16].
Written materials relied upon by the parties
20 I can move now to identify the scope of the requests to Mr Napoli under the subpoenas he received in the Golden Commercial action and the Wellington Parkland action. Before doing that I record that upon this application (determined on the papers) the parties have filed and exchanged extensive written submissions. In the Golden Commercial matter I refer to:
(i) the defendants' written submissions of 13 September 2013;
(ii) the plaintiffs' outline of submissions of 20 September 2013; and
(iii) the defendants' submissions in reply of 26 September 2013.
21 There are counterpart written submissions for the Wellington Parkland action exchanged as between the parties and bearing the same dates.
22 Before evaluating those submissions I need to set out the scope of the requests for pre-trial documents under each subpoena. I do that by reference to the terms of the Golden Commercial subpoena issued to Mr Napoli, noting that in structure, the subpoena he also received in the Wellington Parkland action had been similarly framed.
Document subpoenas to Mr Charles Napoli of Barringtons Accountants
23 The subpoena in the Golden Commercial action was issued on 26 June 2013. It was issued as returnable on 4 July 2013 in this court. The documents or things Mr Napoli was required to produce either at that time, or informally to the registry of the court (two clear days before) were identified by pars 2 - 9 (par 10 was consensually struck out as between the parties) under a heading 'Documents to Produce: Golden Commercial'. This request read:
2. All Correspondence between you and Golden Commercial during the Period in relation to investments made by Astral Land Pty Ltd in Golden Commercial.
3. Any Correspondence between you, on behalf of Golden Commercial and the Named Entities or any of them, during the Period in relation to the investments made by Astral Land in Golden Commercial.
4. Any Correspondence between you, on behalf of Golden Commercial and the Named Entities or any of them, during the Period in relation to the investments made by Lias Aripin in Golden Commercial.
5. Any advice given by you to Golden Commercial during the Period in relation to the investments made by Astral Land in Golden Commercial.
6. All Financial Documents of Golden Commercial held by you that include a reference to Astral Land Pty Ltd or that relate to the sale of properties owned by Golden Commercial in the Period.
Documents to produce: Luan May Wong/Andrew Sugiaputra
7. All Correspondence between you and Mrs Luan May Wong and between you and Mr Andrew Sugiaputra during the Period in relation to investments made by m investments made by Mr Lias Aripin, including through Astral Land, in Australia.
8. Any Correspondence sent or received by you on behalf of Mrs Luan May Wong or Mr Andrew Sugiaputra during the Period in relation to Golden Commercial or Mr Lias Aripin's investments, including through Astral Land, in Golden Commercial.
9. Any Advice given by you to Mrs Luan May Wong or Mr Andrew Sugiaputra during the Period in relation to investments made by Mr Lias Aripin, including through Astral Land, in Australia.
24 Towards understanding the breadth of the documentary materials required of Mr Napoli, it is important to understand that documents called for had been the subject of wide definitions in the subpoena, by reference to terms 'Advice', 'Astral land', 'Correspondence', 'Financial documents', 'Mrs Luan May Wong', 'Named Entities' (of which there were 14 entities, including the Australian Taxation Office); the critical term 'Period' and the entity 'Golden Commercial'. To understand the extraordinarily wide scope of this request it is necessary to set out the definitions.
1. In this subpoena:
'Advice' includes written advice (whether given in writing or electronically) and also any notes or records of advice given orally;
'Astral Land' means Astral Land Pty Ltd (ACN 110 458 798);
'Correspondence' means written correspondence and enclosures, electronic correspondence and attachments, and notes or records of oral conversations;
'Financial Documents' means financial statements, general ledgers, trial balances, tax returns (including any BAS statements) and transaction records, records of tax payments (including on account of capital gains tax) and any drafts or electronic versions of such documents;
'Mrs Luan May Wong' includes anyone acting or communicating or corresponding on behalf of Mrs Luan May Wong;
'Named entities' means:
a. Astral Land Pty Ltd;
b. Mr Lias Aripin;
c. Mr James Aripin;
d. Ms Ervi Aripin;
e. Golden Commercial Pty Ltd;
f. Mrs Luan May Wong;
g. Mr Howard Sugiarso;
h. Mr Andrew Sugiaputra;
i. Mr Steven Tay;
j. Napoli Fernandes Moore;
k. Butler Settineri;
l. Barringtons;
m. Mr Cormac Sharkey; and
n. The Australian Taxation Office.
'Period' means the time between the date of your engagement by Wellington Parkland Pty Ltd [sic] or Mrs Luan May Wong (whichever is earlier), and the date of issue of this subpoena, and inclusive of those dates;
'Golden Commercial' means Golden Commercial Pty Ltd (ACN 109 255 944), or Mrs Luan May Wong or Mr Andrew Sugiaputra, or Mrs Luan May Wong or Mr Andrew Sugiaputra acting or communicating or corresponding on behalf of Golden Commercial.
25 The Wellington Parkland subpoena is similarly framed in its definitions, save there is a definition for Wellington Parkland. The 'Period' again was defined in wide terms, as:
'Period' means the time between the date of your engagement by Wellington Parkland Pty Ltd or Mrs Luan May Wong (whichever is earlier), and the date of issue of this subpoena, and inclusive of those dates;
26 See also:
'Wellington Parkland' means Wellington Parkland Pty Ltd (ACN 104 080 784), or Mrs Luan May Wong or Mrs Luan May Wong acting or communicating or corresponding on behalf of Wellington Parkland.
27 The documents to be produced on his subpoena were:
Documents to produce: Wellington Parkland
2. All Correspondence between you and Wellington Parkland during the Period in relation to investments made by Astral Land in Wellington Parkland.
3. Any Correspondence between you, on behalf of Wellington Parkland and the Named Entities or any of them, during the Period in relation to the investments made by Astral Land in Wellington Parkland.
4. Any Advice given by you to Wellington Parkland during the Period in relation to the investments made by Astral Land in Wellington Parkland.
5. All Financial Documents of Wellington Parkland held by you that include a reference to Astral Land or that relate to the sale of properties owned by [Wellington Parkland] in the Period.
Documents to produce: Luan May Wong/Andrew Sugiaputra
6. All Correspondence between you and Mrs Luan May Wong and between you and Mr Andrew Sugiaputra during the Period in relation to investments made by Mr Lias Aripin, including through Astral Land, in Australia.
7. Any Correspondence sent or received by you on behalf of Mrs Luan May Wong or Mr Andrew Sugiaputra during the Period in relation to Wellington Parkland or Mr Lias Aripin's investments, including through Astral Land, in Wellington Parkland.
8. Any Advice given by you to Mrs Luan May Wong or Mr Andrew Sugiaputra during the Period in relation to investments made by Mr Lias Aripin, including through Astral Land, in Australia.
9. All Financial Documents of Ms Luan May Wong held by you dated between November 2002 and the date of this subpoena, inclusive of those dates.
The unresolved objection by the defendants
28 I move to the basis of objection raised to the temporal scope of each subpoena by the defendants.
29 In the Golden Commercial action the defendants 'object to Mr Napoli producing documents after 29 May 2008 those documents being irrelevant to the Plaintiff's Further Re-Amended Substituted Statement of Claim filed 14 September 2012 (Statement of Claim) and thereby serve no legitimate forensic purpose' (par 5 of the defendants' submissions).
30 By reference to pars 5 and 65 of the Statement of Claim the defendants say the relevant events as pleaded by the plaintiff all occurred between the period on or about November 2002 (par 5) or on or about 28 May 2008 (par 65) (par 4 of the defendants' submissions).
31 Accordingly, the defendants' objection is framed in respect of any period running between 30 May 2008 to the date of issue of the subpoena (26 June 2013) by reference to the definition of the term 'Period' and its subsequent application as regards defined documents to produce as 'Correspondence', 'Advice' and 'Financial Documents'.
32 For the Wellington Parkland action, by reference to the like definition of the term 'Period', the defendants object to Mr Napoli producing any documents after 2 May 2008, on the basis that they are 'irrelevant to the Plaintiff's Minute of Substituted Statement of Claim filed 3 July 2013 and thereby serve no legitimate forensic purpose'.
33 For the Wellington Parkland action the defendants say the relevant events pleaded by the plaintiffs occurred in or about November 2002 (by reference to par 5 of the Minute of Substituted Statement of Claim) and on 29 March 2008 (by reference to par 13(f) of the Minute of Statement of Claim). It is accepted by the defendants, however, that the witness statements of Mr Lias Aripin and his son, Mr James Aripin, filed on 31 July 2013, suggest that the pleaded date 29 March 2008 is a mistake, since those witness statements refer to the alleged transaction as having occurred on 2 May 2008. Accordingly, objection is only taken in respect of the production of documents from 3 May 2008 until the date of issue of the Wellington Parkland subpoena (namely 26 June 2013) by reference to the defined term 'Period'.
34 There appears to be no argument that Mr Napoli was not engaged either by Wellington Parkland or by Golden Commercial as at about March 2003. In effect then, the period covered under each subpoena to Mr Napoli spans from March 2003 to June 2013, by drafting of the subpoenas in a way which can only be described as 'dragnet'. Then the arithmetic consequences of 14 different named entities being injected into a correspondence request equation expands the potential reach of the subpoena to multifaceted dimensions akin to the work of a super trawler.
35 I note that there would appear to be a mistake in the definition of 'Period' used in the Golden Commercial document subpoena served upon Mr Napoli. It refers in its definition of 'Period' to Wellington Parkland Pty Ltd (see above). This error is a manifestation of what I assess to be an unfocused, de facto third party discovery trawling exercise targeted at the defendants' accountant, who is perceived as a likely repository of helpful documents, prior to inter parties discovery being attempted.
36 Such subpoenas might well have been challenged by Mr Napoli as either an abuse of process or oppressive. However, no such challenge was mounted by the subpoena recipient. Instead, the parties, as between themselves, conferred and worked upon narrowing the range of the subpoena. It would appear there have been some areas of pruning which have occurred, however, there remains the conceptual disagreement about the pruning of the decade long temporal span of the subpoenas to the still substantial periods offered by the defendants in each action.
Determination
37 Dragnet subpoenas of this kind are to be deprecated. They lack an appropriate focus by reference to presenting issues in the litigation. Quite obviously it will be unusual for a third party recipient to be in a position to evaluate the legitimacy of the ambit of the subpoena by reference to pleadings, to which the third party is not privy. In this case, however, the defendants' solicitors were engaged to represent Mr Napoli as regards his proper answering of the subpoenas.
38 The plaintiffs have sought to answer criticisms about their subpoenas by suggesting limiting criteria had been applied in their drafting. Hence, in the Golden Commercial action the Astral plaintiffs say its request for all correspondence between [Mr Napoli] and Golden Commercial (also widely defined to include the corporation and potentially four other entities) during the 'Period' was only 'in relation to investments made by Astral Land Pty Ltd in Golden Commercial' (par 2 of the plaintiff's subpoena above).
39 By my assessment that is limiting criteria in name only. The request lacks an appropriate focus by reference to issues presenting or arising upon the parties pleadings (which at present in the Golden Commercial action only comprise the plaintiff's Re-Amended Substituted Statement of Claim filed on 14 September 2012). That essentially pleads out a representational case by reference to seven alleged representations across the period March to May 2008. In my view, for periods later than that time, these requests to Mr Napoli for 'correspondence' and 'advice' (so defined) do fall outside a range of apparent relevance, even applying the relative lassitude of that threshold as explained by the cases to which I earlier referred.
40 In my view, the defendants have been generous in the period which they have been prepared to accept here as applicable to a proper response by Mr Napoli.
41 Likewise, for the Wellington Parkland action the significant events in relation to alleged investments in shares of Wellington Parkland Pty Ltd as an owner of properties at Maddington (see par 10 of the Substituted Statement of Claim) span representations between April 2005 and November 2007. I am prepared to accept that 'financial statements' should be provided in the Wellington Parkland action for the whole decade long period as defined, bearing in mind a continued shareholding investment in property owning corporation to the present time.
42 However, 'Financial Documents' is defined far too widely in the subpoena. The definition ought be narrowed to only embrace, at least at this point in the litigation, just annual financial statements, tax returns or electronic versions of such documents. The Astral plaintiffs' attempts to embrace 'any drafts' in the as drawn subpoena definition of 'Financial Documents' simply illustrates an inexcusably unthinking, unfocussed and dragnet character of the document request.
43 In the Golden Commercial action the plaintiff disposed of its shareholding. There is a deed of share sale and recall option of 29 May 2008 pleaded at par 65 of the Further Re-Amended Substituted Statement of Claim. Accordingly, there is no need for the period as defined in respect of the Golden Commercial action to extend beyond then.
44 In responsive submissions on behalf of the Astral plaintiffs in both actions, an effort was made to justify the temporal ambit of each subpoena by reference to the content of the plaintiffs' exchanged witness statements to date. However, witness statements do not set the parameters of relevance in litigation. Nor for that matter do they pertain to assessing apparent relevance. Reliance upon witness statements by the plaintiffs to justify the ambit of their subpoenas is conceptually misconceived.
45 It is also inappropriate for the Astral plaintiffs to try to justify the ambit of their requests by reference to a generalised assertion, for instance in the Wellington Parkland action, to the effect that the material would be relevant to an assessment of apparent loss and damage suffered by the plaintiffs (par 13 of the plaintiffs' written submissions in the Wellington Parkland action). There is not any averment to date about an alleged failure to pay a dividend. The defendants' responsive contention to the effect that the 'plaintiffs' pleading at pars 34A and 39A indicates that the plaintiffs crystallise alleged loss and damage as at 29 November 2007', on the face of it, would appear to answer that contention (par 12 of the defendants' reply submissions).
46 For the Wellington Parkland action the defendants would appear to have been generous in raising no objections to Mr Napoli producing documents under the subpoena from March 2003 up to 2 May 2008. I would uphold the objection to the subpoena being narrowed and rendered inapplicable to any periods beyond that time, save only in respect of 'financial documents' (but read on the basis I have indicated).
47 I reach a similar limiting conclusion to the temporal scope of the subpoena to Mr Napoli in the Golden Commercial matter but with no carve out qualifications as regards 'financial documents'.
48 In the end, therefore, at the behest of the defendants, I would either narrow by amendment the temporal scope of the subpoenas as indicated or, alternatively, set them aside in part to the extent they would seek to impose production obligations upon Mr Napoli beyond the legitimate dates of pleading issue relevance, which the defendants have accepted (save in respect of financial documents in the Wellington Parkland action over the whole period as requested).
Further matters
49 One argument fashioned by the Astral plaintiffs seeking to justify the ambit of its subpoenas I save until last. This was that the defendants had issued subpoenas themselves to the plaintiffs' own accountant in equally broad terms so that the plaintiffs had justifiably only followed suit. In effect a 'sauce for the goose' argument was put. However, it is not for parties to set as between themselves the standards of applicable principle as regards the answering of pre-trial document subpoenas. 'Tit-for-tat' payback arguments about a reciprocal retaliatory scope of the document subpoena by one party against the other are both unhelpful and unpersuasive. They reflect an intellectual approach of principle best left in the kindergarten playground.
50 Apart from orders narrowing the temporal scope of both subpoenas as indicated I would, in the aftermath of this application, indicate that until further order there are to be no further pre-trial document subpoenas issued by any party in the Golden Commercial action, the Wellington action or in the defamation action (CIV 1550 of 2011) without my leave - which is to be sought by reference to a draft proposed subpoena submitted for my approval.
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