Australian Securities and Investments Commission v Macks - [2018] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MACKS
[2018] SASC 132
Judgment of The Honourable Justice Doyle
10 September 2018
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS
EVIDENCE - AFFIDAVITS AND STATUTORY DECLARATIONS - AFFIDAVITS - USE OF AFFIDAVITS - CROSS-EXAMINATION OF DEPONENT
The plaintiff seeks an order that there be an inquiry into the conduct of the defendant as liquidator of certain companies.
The plaintiff has brought an application to amend its originating process, and the defendant has brought an application to stay the proceedings as an abuse of process.
In anticipation of the hearing of these interlocutory disputes, the defendant sought permission to cross-examine the deponents of two affidavits filed by the plaintiff. The defendant also sought access to certain documents for use in relation to these interlocutory disputes. In particular, he sought production of documents said to be referred to in one of the plaintiff’s affidavits; permission to issue a notice to produce returnable at the hearing of the interlocutory disputes; and disclosure of documents ahead of that hearing.
Per Doyle J (dismissing the applications):
1.       Consideration of the circumstances in which it will be appropriate to permit cross-examination or access to documents in the context of interlocutory disputes.
2.       Not established that the cross-examination or documents would be of more than marginal relevance or utility to the determination of the interlocutory disputes.
3.       Having regard to the Court’s obligation to ensure the expeditious and efficient conduct of litigation neither fairness to the defendant nor the interests of justice required permission to cross-examine or access to the documents sought in the circumstance of this case.
4.       Applications to cross-examine and for access to documents dismissed.
Corporations Act 2001 (Cth) s 536(1); Supreme Court Civil Rules 2006 (SA) r 61(1), r 165(1), referred to.
Ren v Jiang [2014] NSWCA 1; Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150; Calvary Health Care Adelaide Incorporated v Price [2013] SASC 97; Talacko v Talacko (No 2) (2009) 25 VR 613; Wu v Avin Operators Pty Ltd (No 3) [2006] FCA 1321; Matthews v SPI Electricity Pty Ltd [2013] VSC 422; Beneficial Finance Corporation Limited v Price Waterhouse (1996) 68 SASR 19; Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 2) [2006] SASC 87; Lilypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411; Balnaves v Smith [2008] 2 Qd R 413; Amos v Brisbane City Council [2012] QCA 206; Thompson v Albarran [2009] SASC 54; Testel Australia Pty Ltd v Rickard [2015] SASC 174; Southern Waste ResourceCo Pty Ltd v Adelaide Hills Region Waste Management Authority [2014] SASC 140; Proude v Visic [2012] SASC 184; Suzlon Energy Ltd v Bangad (2011) 198 FCR 1; New Ashwick Pty Ltd v IAMA Limited (No 1) [2000] SASC 416; Steicke v Donaldson Walsh Lawyers (No 2) [2011] SASC 84, considered.

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MACKS
[2018] SASC 132
Civil.
DOYLE J:

In these proceedings the plaintiff (ASIC) seeks an order that there be an inquiry pursuant to s 536(1) of the Corporations Act 2001 (Cth) into the conduct of the defendant (Mr Macks) as liquidator of Bernsteen Pty Ltd and Newmore Pty Ltd.
ASIC has brought an application to amend the terms of its originating process, and Mr Macks has brought an application to stay the proceedings on the ground they are an abuse of process. In anticipation of the hearing of these two interlocutory applications, Mr Macks sought permission to cross-examine the deponents of two affidavits filed by ASIC. I declined this application. Mr Macks has since brought an application seeking various documents from ASIC. In particular, Mr Macks seeks either an order that ASIC produce various documents referred to in one of the affidavits filed by ASIC, an order granting permission to issue a notice to produce documents for use at the hearing of the applications to amend and for a stay, or an order that ASIC provide disclosure of the documents identified in the proposed notice to produce.
These are my reasons for declining each limb of Mr Macks’ application.
Background
Mr Macks was appointed liquidator of Bernsteen and Newmore in late 2001. In 2006, Mr Viscariello, a former director and shareholder of these companies, brought proceedings in this Court alleging misconduct by Mr Macks in his administration of these companies (the Viscariello proceedings). The Viscariello proceedings were complicated and protracted. The trial was heard by Kourakis CJ over a number of days in 2012 and 2013, with judgment ultimately delivered in December 2014. The judgment included various findings of misconduct by Mr Macks.[1]
[1] Viscariello v Macks (2014) 103 ACSR 542.
ASIC commenced these proceedings in March 2015, seeking an inquiry pursuant to s 536(1) of the Corporations Act into whether, as a consequence of the findings made in the Viscariello proceedings, Mr Macks (i) should continue as the liquidator of the various companies in respect of which he held that role; (ii) was a fit and proper person to be registered as a liquidator; and (iii) should have his registration as a liquidator cancelled.
These proceedings were adjourned pending the appeal in the Viscariello proceedings. The Full Court delivered judgment in that appeal in December 2017.[2] Mr Macks was partially successful. Several of the findings against him were set aside. However, the Full Court did not set aside Kourakis CJ’s finding that, as liquidator of Bernsteen, Mr Macks acted in breach of s 180(1) of the Corporations Act from 28 April 2006 in failing to exercise the degree of care and diligence required by him as an officer of Bernsteen in applying Bernsteen’s funds in connection with certain pieces of litigation. Further, the Full Court was not asked to, and did not, interfere with findings that had been made by Kourakis CJ to the effect that Mr Macks fabricated two memoranda that he provided to ASIC in 2009 in the course of an inquiry by ASIC into his conduct as the liquidator of Bernsteen.
[2] Macks v Viscariello (2017) 130 SASR 1.
On 3 April 2018, ASIC brought an interlocutory application in these proceedings seeking permission to amend its originating process. In addition to some relatively formal matters, ASIC sought to amend to confine the scope of the proposed s 536(1) inquiry into Mr Macks’ conduct to the three findings of Kourakis CJ that survived the Full Court appeal; namely, the breach of s 180(1) of the Corporations Act from April 2006, and the fabrication of two memoranda provided to ASIC in 2009.
Mr Macks opposed ASIC’s application for permission to amend its originating process. Further, on 25 May 2018, Mr Macks brought an application seeking a permanent stay of these proceedings on the ground they constitute an abuse of process.
There is a significant overlap in the grounds upon which Mr Macks opposes ASIC’s application for permission to amend, and the grounds upon which he contends that the proceedings should be stayed as an abuse of process. At the heart of these grounds is Mr Macks’ complaint that ASIC has been aware of concerns about his conduct in respect of the administration of Bernsteen from as early as August 2005; has conducted its own extensive investigation into that conduct from around November 2009; and was aware of, and (largely) declined to participate in, the Viscariello proceedings. Mr Macks contends that, in light of this background knowledge and involvement, ASIC could have and should have pursued any application for an inquiry under s 536(1) into Mr Macks’ conduct as liquidator of Bernsteen well before now, and that in the absence of any explanation for the ‘late’ timing of the application (and the subsequent application to amend), these proceedings should be stayed as an abuse of process, or at the very least permission to amend should be declined.
ASIC’s response is essentially that, given the disciplinary nature of these proceedings, it was appropriate that it awaited the outcome of the trial in the Viscariello proceedings, and then the Full Court appeal in those proceedings, before issuing and then progressing these proceedings. ASIC further contends that the timing of the application to amend does not require any affidavit explanation given that it is primarily an application to reduce the scope of the proposed s 536(1) inquiry to reflect the impact of the Full Court’s judgment on the findings that had been made by Kourakis CJ.
The detail and merits of the competing arguments on the applications to amend, and for a stay, are matters for the subsequent hearing of these interlocutory applications. I have recounted the above simply to set the scene for the issues which have arisen in anticipation of the hearing of these applications.
The affidavits filed by ASIC
The originating process filed by ASIC in these proceedings was accompanied by an affidavit of Mr Thorne sworn 11 March 2015 (the Thorne affidavit).
Mr Thorne was employed by ASIC as a senior manager of the enforcement team in its Perth office. His affidavit was largely formal in its content. It commenced with various details about Mr Macks’ registration as a liquidator, the appointments he held, and the professional organisations of which he was a member. It exhibited copies of some of the professional standards relevant to the work of insolvency practitioners.
After attaching the searches that revealed Mr Macks’ appointments as liquidator of Bernsteen and Newmore, the Thorne affidavit then provided a summary of the litigation against Mr Macks. In particular, in paragraph [29] of the Thorne affidavit, Mr Thorne commenced by referring to his “review of the documents held by ASIC”, before then briefly summarising various aspects of the Viscariello proceedings. The summary included reference to Mr Viscariello having brought two applications in those proceedings requesting that ASIC conduct an inquiry into the conduct of Mr Macks as liquidator of Bernsteen and Newmore, and to both of those applications having been adjourned. The summary concluded with a reference to the December 2014 judgment of Kourakis CJ in the Viscariello proceedings.
In the next section of the Thorne affidavit, Mr Thorne mentioned the ASIC investigation into Mr Macks’ conduct as liquidator of Bernsteen and Newmore that had commenced in around November 2009. Mr Thorne said that as the “project sponsor” of the investigation, his role was to ensure the investigation was focussed and adequately resourced. He explained that during the course of that investigation, and in response to a notice for production, Mr Macks had produced documents to ASIC that included the two memoranda the subject of the proposed s 536(1) inquiry. The documents were held by a group of staff within ASIC responsible for evidence management (known as ASIC’s ‘evidence services consulting’ or ESC).
The next section of the Thorne affidavit mentioned a subpoena served on ASIC in the Viscariello proceedings, and the process by which ASIC responded to the subpoena. In paragraphs [42]-[43], Mr Thorne deposed:
According to my review of ASIC’s files on 27 August 2012 Ms McCormick obtained from the ESC the documents requested by the Subpoena and arranged for the same to be delivered to the Court (the Documents).
Included in the Documents were the original Memos as provided by the Defendant to ASIC.
The Thorne affidavit next explained the steps that led ASIC to become aware in about December 2012 that the two memoranda were not genuine documents, and the subsequent steps taken by ASIC in response to this realisation. These subsequent steps included a review by Ms McCormick (a senior lawyer employed by ASIC within the enforcement team in its Perth office) of certain transcripts of Mr Macks’ evidence from the Viscariello proceedings and the documents within ASIC document imaging system. In paragraph [51], Mr Thorne deposed that “[b]ased on Ms McCormick’s findings” and the transcripts, ASIC extended its investigation to include possible breaches of the Corporations Act arising out of Mr Macks’ production of the two memoranda to ASIC on behalf of Bernsteen knowing they were not genuine documents.
The Thorne affidavit concluded with a summary of the adverse findings in relation to the conduct of Mr Macks made by Kourakis CJ in his December 2014 judgment in the Viscariello proceedings. Mr Thorne had earlier mentioned that an appeal from this judgment had been foreshadowed.
The foreshadowed appeal to the Full Court from the judgment of Kourakis CJ in the Viscariello proceedings was later issued. The within proceedings were then adjourned pending the hearing and determination of that appeal.
ASIC’s March 2018 application to amend its originating process in light of the Full Court judgment was accompanied by an affidavit of Mr Geneste sworn 15 March 2018 (the Geneste affidavit).
Mr Geneste was employed by ASIC as a senior manager within the enforcement team in its Perth office. He explained that he had been involved in the investigations mentioned in the Thorne affidavit since June 2017, and that he had taken over some of the responsibilities of Mr Thorne, who was no longer employed by ASIC. He explained that the purpose of his affidavit was to update the evidence and support the application to amend. He said that the amendments were “to narrow the scope of the inquiry as a result of the decision of the Full Court in [the Viscariello proceedings] and to plead the transitional provisions relevant to the amendments to the Act which came into effect on 1 March 2017.”
The Geneste affidavit attached various updated searches as to the appointments held Mr Macks. It mentioned that Mr Macks had, by consent, been replaced by Mr Basedow as the liquidator of Bernsteen and Newmore on 15 April 2015. It exhibited a copy of the Full Court’s judgment on the appeal in the Viscariello proceedings.
The affidavit concluded by stating that ASIC now sought to limit the scope of the proposed inquiry into Mr Macks’ conduct to the contravention of s 180(1) upheld by the Full Court, and the trial judge’s findings that the two memoranda provided to ASIC had been fabricated by Mr Macks. Mr Geneste said that ASIC was petitioning the Court to conduct an inquiry and grant relief pursuant to s 536(1) of the Act with the effect of removing Mr Macks from all current appointments as liquidator or administrator, and permanently cancelling his registration as a liquidator. He said that, in the alternative, ASIC sought orders that Mr Macks be prohibited from holding the office of liquidator, provisional liquidator or administrator for such period as the court considered appropriate and/or that he be disqualified from managing corporations for such period as the Court considers appropriate.
Application to cross-examine
ASIC’s application for permission to amend and Mr Macks’ application for a stay were listed for hearing on 2 August 2018.
At the time those matters were set down for argument, counsel for Mr Macks foreshadowed the possibility of an application to cross-examine Mr Thorne and Mr Geneste on their affidavits. I directed that Mr Macks’ advisors identify the basis for any such cross-examination, and the topics intended to be addressed. Mr Macks’ solicitors did so by an email to ASIC dated 25 July 2018 in the following terms:
By his interlocutory application, Mr Macks challenges the basis upon which ASIC appears to be seeking an inquiry under s 536, which comprise an abuse of process. He also challenges the credence of the asserted basis by which ASIC contends that it is appropriate for there to be an inquiry under s 536, in circumstances where ASIC has already conducted extensive investigations using its statutory powers and where Mr Macks has already been subject to an extensive trial and appeal process in relation to the same subject matter and where by ASIC’s own admission no additional evidence is likely to be adduced in the course of any such inquiry.
Accordingly, Mr Macks seeks to cross-examine ASIC’s deponents as to: the intended purpose of the proposed inquiry; the matters that ASIC contends are to be inquired into; the evidence which ASIC seeks to adduce at any such inquiry; and the final relief that will be sought.
I heard oral argument on the application to cross-examine Mr Thorne and Mr Geneste on 27 July 2018. I ruled that on the material before me at the time, I was not satisfied that a proper basis had been established for me to order that either Mr Thorne or Mr Geneste attend for cross-examination. I indicated that I might publish some short reasons for this ruling in due course.
In summary, my reason for declining permission to cross-examine Mr Thorne or Mr Geneste was that I was not satisfied that the cross-examination of either of these men would be of sufficient utility to warrant a grant of permission.
The Court has a discretion under rule 165(1) of Supreme Court Civil Rules 2006 (SA) to order that the deponent of an affidavit relied upon in relation to an interlocutory application attend for cross-examination. However, a review of the authorities suggests that this discretion should be exercised cautiously and somewhat sparingly. There is authority to this effect both in the context of applications for a stay,[3] and interlocutory applications more generally.[4]
[3] Ren v Jiang [2014] NSWCA 1 at [11]-[12]; Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 at [29].
[4] Calvary Health Care Adelaide Incorporated v Price [2013] SASC 97 at [19]-[20]; Talacko v Talacko (No 2) (2009) 25 VR 613 at [13], [16]; Wu v Avin Operators Pty Ltd (No 3) [2006] FCA 1321 at [18]; Matthews v SPI Electricity Pty Ltd [2013] VSC 422 at [25]-[29].
The primary reason for the discretion being exercised cautiously and somewhat sparingly is the delay, cost and inconvenience usually occasioned by permitting cross-examination on interlocutory applications.[5] It is imperative that the courts do what they can to control the scope of interlocutory disputes with a view to progressing proceedings as efficiently as possible towards a resolution of the ultimate issues in the proceedings, and to discourage a proliferation of disputes at the interlocutory stage of the proceedings. Such an approach is consistent with, if not mandated by, the overarching objects of the Rules, as set out in rule 3, which include avoiding delay, minimising costs, and promoting efficiency and the resolution of disputes so far as that is consistent with the paramount claims of justice. It is also consistent with the Court’s power and obligation under rule 116(1) to manage litigation to ensure it is conducted not only fairly, but also as expeditiously and economically as is consistent with the proper administration of justice.
[5] Ren v Jiang [2014] NSWCA 1 at [13].
That said, there will be some circumstances in which the fair resolution of an interlocutory application requires that a party have permission to cross-examine the deponent of an affidavit. That may be so, for example, where the credit of the deponent is a matter of importance to the resolution of the interlocutory application; or where there is a proper basis for contesting a particular assertion of fact that is of importance to the resolution of the interlocutory application.
In determining whether to exercise the Court’s discretion to require that a deponent of an affidavit attend for cross-examination it will often be instructive to weigh the delay, expense and inconvenience likely to be occasioned by the foreshadowed cross-examination against the likely practical utility of that cross-examination. And in assessing the likely practical utility of the foreshadowed cross-examination, the focus should be on its likely contribution to the fair resolution of the interlocutory application. Cross-examination should not generally be permitted in relation to matters likely to be of merely peripheral significance to the determination of an interlocutory application.

I was not satisfied that the cross-examination foreshadowed in this case would have been of sufficient practical utility to warrant a grant of permission. There was no issue in relation to the credit of either Mr Thorne or Mr Geneste. Both affidavits were confined to relatively former matters. It was not suggested that either deponent had made any assertions of primary fact that were contested. Nor did I consider that there would have been any utility in cross-examining Mr Thorne or Mr Geneste in relation to the topics identified in the email of 25 July 2018.
As to the first of these topics – ASIC’s purpose in seeking the inquiry under s 536(1) of the Corporations Act – neither Mr Thorne nor Mr Geneste directly asserted any particular purpose, other than (inferentially) to seek an inquiry with a view to determining Mr Macks’ fitness to continue to practise as a liquidator. While Mr Macks’ application for a stay is premised upon an assertion of an improper purpose on the part of ASIC, there is nothing to suggest to me a proper basis for cross-examining either Mr Thorne or Mr Geneste as to the existence of any such purpose. Neither affidavit was sworn in response to the assertion of an improper purpose. Indeed, the Thorne affidavit was sworn some three years prior to the assertion of such a purpose; and the Geneste affidavit was essentially confined to a formal explanation of the circumstances leading to the application to amend. It seems to me that the assertion of an improper purpose is a matter that will fall to be assessed by reference to any inferences that might be drawn from the background knowledge and involvement of ASIC as outlined earlier in these reasons, rather than the evidence of Mr Thorne or Mr Geneste.
Similar observations apply in relation to the three other topics identified in the email. The matters to be inquired into, and the relief to be sought, are identified in, and will be determined by reference to, the originating process and any pleadings to be filed in the proceedings. The evidence to be relied upon by ASIC, and in particular the extent to which ASIC will need to attempt to “re-prove” the matters the subject of findings in the Viscariello proceedings, will also be a matter to be determined by reference to the originating process, any pleadings and the party’s submissions as to the operation in the present context of the so-called rule in Hollington v Hewthorn.[6]I consider it unlikely that any cross-examination of Mr Thorne or Mr Geneste will be of assistance in my consideration of any of the above matters.
[6] Hollington v F Hewthorn & Co Ltd [1943] KB 587.
It is for these reasons that I was not satisfied that the fair hearing of the two interlocutory applications required that Mr Macks’ counsel have permission to cross-examine either Mr Thorne or Mr Geneste on their affidavits.
Requests for documents
On 25 July 2018, the solicitors for Mr Macks made a request for the production of documents referred to in the Thorne affidavit pursuant to rule 61(1).The request sought copies of the following:
1.   The “documents held by ASIC” which were reviewed by Mr Thorne, as referred to at paragraph [29] of his affidavit;
2.   “ASIC’s files” which were reviewed by Mr Thorne, as referred to at paragraph [42] of his affidavit; and
3.   “Ms McCormick’s findings” regarding the outcome of ASIC’s investigations, to the extent that they are in writing, as referred to at paragraph [51] of the Thorne affidavit.
Further, by letter dated 26 July 2018, the solicitors for Mr Macks sent ASIC a draft notice to produce. The letter requested ASIC’s agreement to production of the documents sought. It indicated that in the absence of this agreement, Mr Macks’ instructions were to seek permission to issue a notice to produce returnable at the hearing on 2 August 2018, or alternatively to seek orders requiring disclosure of the same documents by ASIC.
The draft notice to produce identified the following four categories of documents:
1.   Documents recording or evidencing communications between ASIC and Mr John Viscariello, including any person or firm of and/or solicitors acting on Mr Viscariello’s behalf, in relation to:
1.1Mr Macks’ conduct as administrator and/or liquidator of Bernsteen Pty Ltd (in liq) and/or Newmore Pty Ltd (in liq) (together, the Companies);
1.2the proceedings commenced by Mr Viscariello in this Court, No. SCCIV-06-165 (Viscariello Proceedings); and/or
1.3the herein proceedings (ASIC Action).
2.   Documents recording or evidencing communications between ASIC and the current liquidator of the Companies, Mr Michael Basedow, and/or employees of Pitcher Partners or solicitors acting on Mr Basedow’s behalf, in relation to:
2.1Mr Macks’ conduct as administrator and/or liquidator of the Companies, including in relation to any suspected breaches of the Act and/or the ASIC Act 2001 (Cth) (ASIC Act);
2.2the Viscariello Proceedings;
2.3the ASIC Action; and/or
2.4the proceedings commenced by Mr Basedow in this Court, No. SCCIV-16-1466, seeking orders for the examination of a former employee of Mr Macks, Rob Naudi, pursuant to s 596B of the Act.
3.   Documents recording or evidence ASIC’s decision:
3.1to intervene or otherwise in the Viscariello Proceedings,
3.2to appear in relation to the applications made pursuant to s 536 of the Act in the Viscariello Proceedings in 2009 and 2012, as referred to at [29] of the affidavit of Mr John Robert Thorne dated 12 March 2015 (Thorne Affidavit); and/or
3.3to continue to prosecute the ASIC Proceedings, and/or seek relief pursuant to s 536 of the Act, following the delivery of the Full Court’s reasons in the Viscariello Appeal (Macks v Viscariello [2017] SASCFC 172), as referred to at [21]-[22] of the affidavit of Mr Vincent Geneste dated 21 March 2018.
4.   Documents recording or evidencing:
4.1the investigations undertaken by ASIC into Mr Macks’ conduct as the liquidator of the Companies, as referred to at [30] of the Thorne Affidavit;
4.2the investigations undertaken by Ms Ingrid McCormick of ASIC, as referred to at [51] of the Thorne Affidavit;
4.3the investigations undertaken by ASIC into possible breaches by Mr Macks of the Act and/or the ASIC Act, as referred to at [51] of the Thorne Affidavit; and/or
4.4the investigations undertaken leading ASIC to form the view that Mr Macks may have breached the provisions of the Act and/or the ASIC Act, as referred to at [61] of the Thorne Affidavit.
ASIC responded by letter dated 30 July 2018 to both the rule 61(1) request for copies of the documents referred to in the Thorne affidavit, and the request for production of the documents in the draft notice to produce.
In relation to the rule 61(1) request, ASIC’s response was to the effect that it would not be able to comply with the request prior to the scheduled hearing:
ASIC is not able to comply with the request in the limited time remaining before the hearing on 2 August 2018. There are approximately 9 years’ worth of documents.
Whilst some are held electronically, others are not, and some would need to be retrieved from archives. I estimate that it would take at least six weeks to collate the documents from the various different sources.
Furthermore, some of the documents will have come from sources where ASIC would normally afford procedural fairness to those third parties before releasing them. ASIC would need to follow this process, unless an order of the Court is made, or a subpoena issued, compelling the production of the documents.
If you are able to narrow the scope of your client’s request, ASIC may be able to respond by this Thursday 2 August 2018. If not, we will need to exercise the liberty to apply on short notice and seek the Court’s direction.
In relation to the draft notice to produce, ASIC’s response was that it was unable to provide all of the documents requested by 2 August 2018, and that it would oppose permission being granted to issue the notice in its present form. The letter noted that Mr Macks had had since 12 March 2015 (the date of the Thorne affidavit) to seek production of the documents now sought, but that he had not done so until less than a week prior to the hearing. ASIC requested that any application for the production of documents be made as a matter of urgency.
Upon these issues being brought to the Court’s attention pursuant to the general liberty to apply afforded to the parties, the matter was called on for directions late in the afternoon of 1 August 2018; that is, the day before the scheduled hearing of the interlocutory applications for permission to amend and for a stay. At this hearing, Mr Macks’ counsel pressed the rule 61(1) request, and sought an adjournment of the hearing scheduled for the following day to allow time for compliance with that request. Consistently with ASIC’s letter dated 30 July 2018, ASIC did not challenge the legitimacy of the rule 61(1) request, but maintained that it would take a number of weeks to comply with the request. However, ASIC’s position was that the hearing scheduled for the following day should not be adjourned given the lateness, and limited utility, of the request.
In the course of the submissions in relation to whether I should adjourn the hearing scheduled for the following morning, it became apparent that the parties were agreed that there was some potential for overlap between the matters to be argued the following day, and the further issues of whether an inquiry under s 536(1) should be ordered and, if so, the form that any such inquiry should take in light of the rule in Hollington v Hewthorn. While the parties appeared to recognise the sense in all of these matters being argued together, the parties were not in a position to address these further issues the following day.
In the above circumstances, I ultimately decided to vacate the hearing scheduled for the following day. I explained at the time that while I was not persuaded that the lack of access to the documents sought in the rule 61(1) request was likely to be of any significant prejudice to Mr Macks, I could not exclude the possibility of those documents having some relevance to the applications listed for the following day. I added that in circumstances where ASIC did not oppose the rule 61(1) request, or challenge the operation of rule 61(1), and where it had emerged that there was some overlap with the further issues that needed to be addressed at some point, I considered it appropriate to vacate the hearing scheduled for the following day with a view to listing the matter for argument on all issues (that is, the applications to amend and for a stay, as well as the further issues mentioned above) at some future date. I did so in anticipation of ASIC having time to comply with the rule 61(1) request ahead of that argument.
Subsequent to this hearing, ASIC’s position in relation to the rule 61 request changed, or at least evolved. By letter dated 9 August 2018, ASIC provided the following response to Mr Macks’ request.
1.   In relation to the paragraph [29] request, ASIC’s response was that “those documents were likely to have been the following (as only those documents established the relevant facts)”. The letter then identified five documents, two of which had enclosures. One had already been exhibited to the Thorne affidavit, two were the subject of a claim for legal professional privilege, and copies of the remaining two were enclosed with the letter.
2.   In relation to the paragraph [42] request, ASIC’s response was that “the documents relied upon by Mr Thorne were” an email from Ms McCormick to the court and an email from the court in response, both of which were already exhibited to the Thorne affidavit.
3.   In relation to the paragraph [51] request, ASIC’s response was that Ms McCormick’s findings had been set out in the preceding paragraphs of the affidavit, and in any event were not a document to which rule 61(1) was applicable.
In subsequent correspondence, Mr Macks’ solicitors challenged the adequacy of this response both in light of the change in ASIC’s position, and in terms of what was required by rule 61(1). Mr Macks’ solicitors continued to press the rule 61(1) request, and ASIC maintained that it had complied with the request in relation to paragraphs [29] and [42] of the Thorne affidavit and that rule 61(1) did not extend to the request made in relation to paragraph [51]. Without any concession that it was required to do so, ASIC also provided Mr Macks’ solicitors with a copy of a correspondence file (after redaction for legal professional privilege). This file apparently comprised about 300 pages.
In the course of the ensuing correspondence between the parties, Mr Macks’ solicitors sought, as an alternative to their continuing to press the rule 61(1) request, the disclosure of various categories of documents. The categories sought were similar to those the subject of the draft notice to produce. ASIC declined to disclose the documents on the basis that the disclosure sought related to “a vast array of documents”; that the relevance to the interlocutory applications had not been explained; and that ASIC took the view that Mr Macks was “on a fishing expedition”.
As the parties were unable to resolve their differences in relation to the documents sought by Mr Macks, Mr Macks filed an interlocutory application dated 27 August 2018 in which he sought the followings orders:
1.   An order that ASIC produce all further documents in response to Mr Macks’ request made pursuant to rule 61(1).
2.   Alternatively, that Mr Macks have permission to serve a notice to produce in terms of the draft notice to produce (referred to earlier in these reasons).[7]
3.   In the further alternative, that ASIC provide disclosure of the categories of documents set out in the draft notice to produce.
[7]    At the hearing it was clarified that paragraph [2] of that draft notice was pressed in any event, and hence regardless of the outcome in relation to the rule 61(1) request.
Application for production of documents referred to in the Thorne affidavit
Rule 61(1) provides:
61—Copies of documents to be provided
(1) If—
(a)a party files in the Court a document that refers to some other document; and
(b)the party is in possession of the original or a copy of the document referred to,
the party must, at the request of another party, provide the other party with a copy of the document.
As the Thorne affidavit is a document that was filed in the Court by ASIC, and because rule 61(1) is mandatory in its terms, Mr Macks contended that ASIC was required to provide him with copies of the documents referred to in paragraphs [29] (“documents held by ASIC”), [42] (“ASIC’s files”) and [51] (“Ms McCormick’s findings”) of that affidavit. Mr Macks sought an order compelling compliance with rule 61(1) or that the documents in question be provided to him.
ASIC resisted any order to this effect on various bases. It did so on the basis that Mr Macks’ request was not consistent with the rationale for rule 61(1), with the result either that the rule did not apply or that the Court should dispense with compliance with the rule. It also did so the basis that the relevant words in paragraphs [29], [42] and [51] did not identify any documents in the sense required to engage the operation of rule 61(1). Finally, ASIC also contended that insofar as paragraphs [29] and [42] identified any documents in the sense required by rule 61(1), they only did so in relation to those documents in fact relied upon by Mr Thorne to ascertain the facts deposed to by him in those paragraphs, with the result that ASIC had complied with the requirements of rule 61(1).
In relation to this last submission, ASIC initially relied upon a submission or assertion from the bar table to the effect that ASIC’s response in its letter of 9 August 2018 reflected its instructions from Mr Thorne as to the documents he relied upon in preparing his affidavit. When this was challenged, ASIC relied upon an affidavit from Mr Thorne (the second Thorne affidavit) in which he deposed that his “best recollection” was that the documents that he “reviewed” for the purposes of paragraph [29] of the Thorne affidavit were those specifically identified in, and exhibited to, that affidavit. However, he added that it was “possible” that he also reviewed the additional documents referred to in ASIC’s response to Mr Macks’ solicitors dated 9 August 2018. As to paragraph [42] of the Thorne affidavit, Mr Thorne deposed in the second Thorne affidavit that he could not recall what file or files he reviewed. However, he explained that given that the review was for the purpose of ascertaining ASIC’s response to a subpoena, it is likely that it involved looking at the letters from ASIC’s court correspondence file at the relevant time that had been specifically identified in, and exhibited to, the Thorne affidavit. He noted that the contents of this correspondence file had been provided to Mr Macks’ solicitors.
The predecessor to rule 61(1) was rule 59.02 of Supreme Court Civil Rules 1987 (SA). That rule was expressed in equivalent terms, although it was accompanied by rule 59.03, which stated that an order for production of any document shall not be made unless the Court is of the opinion that the order is necessary for disposing fairly and expeditiously of the action. There is no equivalent of rule 59.03 in the current rules.
In Beneficial Finance Corporation Limited v Price Waterhouse,[8] Lander J described the rationale for rule 59.02 in the following terms:[9]
The purpose of r 59.02 is to make available, without the necessity of going through the discovery process in the case of a pleading or in the case of an interlocutory proceeding requiring a deponent to attend for cross-examination in the case of an affidavit, those documents to which a party has referred in the pleading or affidavit. The rule assumes that if a party believed that those documents were important enough to refer to in that party's pleading or affidavit they ought to be made available immediately and in a summary way to the opposing party. The rule also assumes the documents are necessary for an understanding of the pleading or affidavits.
[8] Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19.
[9] Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19 at 50.
In that case, the respondent had sought production under rule 59.02 of certain documents referred to in an affidavit of the appellant’s solicitor filed in opposition to an application for discovery of documents in relation to the appellant’s insurance arrangements. The Court held that rule 59.02, particularly when read in combination with rule 59.03, could not have been intended to operate in a manner that would impede the appellant’s ability to resist an application for disclosure. The Court was not satisfied that the production of the documents referred to was consistent with the rationale for rule 59.02 or necessary for disposing fairly and expeditiously with the application. The Court thus set aside the primary judge’s order for production.
In Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 2),[10] an affidavit filed in support of the plaintiffs’ opposition to an application to cross-vest the proceedings made reference to the documents held by the plaintiffs’ solicitors in their Adelaide offices. The purpose of referring to the documents was not to rely on the content of the documents but rather the volume of the documents (as indicative of the convenience of continuing the proceedings in the present forum). In declining to make an order for production under rule 59.02, Debelle J applied Beneficial Finance, and in particular the passage from the reasons of Lander J in that case extracted above. However, his Honour emphasised the significance of reading rule 59 as a whole, and in particular the qualifying effect of rule 59.03 upon the operation of rule 59.02
[10] Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 2) [2006] SASC 87.

I accept that Lander J’s articulation of the purpose of rule 59.02 in Beneficial Finance applies with equal force in relation to rule 61(1). However, I do not accept ASIC’s submission that if the rationale is not engaged in a particular case then the rule does not require production. In this context, the absence of an equivalent of rule 59.03 in the current rules is significant. It was the existence of this rule that led the Courts in Beneficial Finance and Alstom Power to conclude that production was not required. The rationale for rule 59.02 in effect informed the scope of the qualifying effect of rule 59.03.
In the absence of an equivalent of rule 59.03 in the current rules, I can see no mandate for reading down the terms of rule 61(1) in the way contended for by ASIC. While the rationale for rule 61(1) informs the interpretation of that rule in a more general way (as explained below), and will be relevant in exercising the discretion to dispense with compliance with the rule, the inapplicability of the rationale in a particular case does not of itself provide a basis for not producing documents otherwise caught by the terms of the rule.
The equivalent rule under the Uniform Civil Procedural Rules applicable in Queensland (rule 222) was considered in Lilypond Constructions Pty Ltd v Homann.[11] In that case, an affidavit of the defendant’s solicitor referred to his “instructions”. In holding that this reference did not engage the operation of rule 222, Mackenzie J said:[12]
It is undoubtedly probable that some documentary evidence of instructions was created at some time. However, it seems to me that r. 222 is directed towards a particular situation, that is to say where a document is specifically referred to in the affidavit. Where it is impossible to identify a specific document referred to in the affidavit and the affidavit is ambiguous as to whether any document was in existence at the time relating to the particular reference to “instructions”, I am not persuaded that r. 222 has any operation. In my view r. 222 requires a clear and unambiguous reference to a document before it can operate.
[11] Lilypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411.
[12] Lilypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411 at [14].
A similar approach was taken in Balnaves v Smith[13] in holding that a reference to “legal advice” that had been obtained was not a reference to a document or documents for the purposes of rule 222. Douglas J held that a merely inferred or implied reference to a document was insufficient; a direct allusion to a document was required.[14]
[13] Balnaves v Smith [2008] 2 Qd R 413.
[14] Balnaves v Smith [2008] 2 Qd R 413 at [7]-[10].
Both Lilypond Constructions and Balnaves v Smith were applied by the Queensland Court of Appeal in Amos v Brisbane City Council[15] in holding that a reference to a “resolution” did not engage the operation of rule 222. While the resolution might have been recorded in a document, the pleading did not refer to any such document. The Court held that the rule applied “only where there was a clear and unambiguous reference to a document and … implication or inference as to the existence of a document was insufficient.”
[15] Amos v Brisbane City Council [2012] QCA 206.
Returning to the authorities in this jurisdiction, in Thompson v Albarran,[16] Judge Withers applied Lilypond Constructions in holding that for rule 59.02 to apply the reference to a document or documents in a pleading or affidavit must be “clear and unambiguous”, and “sufficiently precise to enable a court without more to make an enforceable order for production”.[17] His Honour applied this approach in declining a number of requests for production on the basis that the relevant passages of the affidavit in question did not clearly and unambiguously identify any particular document or documents.
[16] Thompson v Albarran [2009] SASC 54.
[17] Thompson v Albarran [2009] SASC 54 at [16]-[19].
In Calvary Health Care Australia Incorporated v Price,[18] Gray J took a similar approach in upholding the primary judge’s refusal to make an order under rule 61(1) in respect of an affidavit reference to the “mandatory reporting criteria” under the defendant’s insurance policy. Applying Lilypond Constructions, the primary judge had held that the notion of “criteria” did not necessarily constitute a document for the purposes of a request under rule 61(1).
[18] Calvary Health Care Australia Incorporated v Price [2013] SASC 97.
In Testel Australia Pty Ltd v Rickard[19] Sulan J declined to order the production of documents requested under rule 61(1). In affidavits filed in opposition to an application for further disclosure, the deponents made reference to certain documents having been reviewed and disclosed to the extent relevant. Applying the reasoning and approach of the Court in Beneficial Finance, Sulan J held rule 61 was not intended to apply to documents referred to merely in the context of an explanation of why they had not been disclosed.[20]
[19] Testel Australia Pty Ltd v Rickard [2015] SASC 174.
[20] Testel Australian Pty Ltd v Rickard [2015] SASC 174 at [16].
Finally, I mention the decision of Judge Dart in Southern Waste ResourceCo Pty Ltd v Adelaide Hills Region Waste Management Authority.[21]The defence filed in that case made reference to “a report addressing both a financial and non-financial analysis of the Authority continuing with its current business plan and the SWR offer”. In ordering production of the report under rule 61(1), and in particular in rejecting the defendant’s contention that it should be entitled to redact aspects of the report containing confidential information, Judge Dart contrasted the general obligation to disclose documents with the specific obligation in rule 61(1). His Honour said:[22]
The obligation under Rule 61 is totally different, in my opinion. Relevance has no part to play. It is an obligation on a party who pleads a document to produce a copy of that document to the other party so that that party is able to properly understand the case put against it. No issue of disclosure or relevance arises. A document which did not fall within the relevant criterion to be disclosed would still need to be produced if referred to in a pleading.
The defendant’s argument that, notwithstanding the wording of Rule 61, the Court retains a discretion in respect of the production of documents must be accepted at least to some extent. The effect of Rule 117 is that the Court always has a discretion to override the Rules of Court when it is in the interests of justice to do so. The Court could decline to require the production of a document that had been referred to in a pleading. However, it would be a very rare case in which the Court would do so. This is not such a case.
The defendant’s pleading is that at its meeting on 21 November 2013 it received the subject report and considered the information contained in it. It then resolved to act in a certain way based on that information. The position of the defendant is that, notwithstanding pleading that it acted on information contained in the report, the information should not be made available to the plaintiff.
To accede to the defendant’s proposition would be to create significant difficulties for the conduct of the trial. The report must be an important issue for the defendant’s case. It would not have been pleaded otherwise. How, for example, is counsel for the plaintiff to cross-examine, at trial, a member of the Authority about its decision to act in a certain way when counsel is not entitled to see the information he or she relied upon. In my opinion, Rule 61 does not anticipate such an approach and, once a document has been pleaded, except in the rarest of cases, the obligation is to produce an unredacted copy to the other party upon request.
[21] Southern Waste ResourceCo Pty Ltd v Adelaide Hills Region Waste Management Authority [2014] SASC 140.
[22] Southern Waste ResourceCo Pty Ltd v Adelaide Hills Region Waste Management Authority [2014] SASC 140 at [22]-[25].
It will be observed that Judge Dart made reference to the Court’s discretion under rule 117 to override the Rules of Court. That rule empowers the Court to do so, and in particular to dispense with compliance with a particular rule, where the Court considers it “necessary for the proper conduct of a proceeding or otherwise in the interests of justice.” In considering the operation of this rule, the Court will be informed by the general objects of the Rules, as set out in rule 3 and summarised earlier in these reasons.
Judge Dart expressed the view that it will be a rare case in which a court will exercise its discretion to decline to require production under rule 61(1) of a document referred to in the pleadings. That may well be so in respect of documents referred to in a pleading, given the centrality of pleadings to the conduct of litigation and the determination of the ultimate issues in the litigation. Certainly it will be so where, as was the situation in that case, the reference to the document deploys, or makes use of, the content of the document.
However, in my view, there will be circumstances in which documents are referred to in a sufficiently clear and unambiguous manner in a document filed in court as to engage the operation of rule 61(1), but in which it is nevertheless appropriate to dispense with compliance with that rule under rule 117. It is likely that those circumstances will arise more commonly in the context of documents referred to in an affidavit rather than a pleading; however, they might arise in either context.
In considering whether it is appropriate to dispense with compliance with rule 61(1), the relevance of the documents to the matters ultimately in issue in the proceedings will generally be of little significance. The reason for this is that the rationale for rule 61(1) turns not upon the documents’ relevance to the matters ultimately in issue, but upon their relevance to an understanding and assessment of the pleading or affidavit in which they are mentioned. However, having regard to that rationale for rule 61(1), it will be appropriate to consider the nature of the documents referred to, the use to which they were put in the pleading or affidavit, and the extent to which access to the documents is necessary for an understanding of the pleading or affidavit or an assessment of the accuracy of, or weight to be attached to, a particular assertion within the pleading or affidavit.
In my view, rule 61(1) was not intended to operate in a capricious manner, or as a trap for the unwary practitioner or deponent. Thus, while its operation may be engaged in a relatively mechanical fashion based upon the form of an affidavit, it will be appropriate to dispense with compliance with the rule if, having regard to the matters I have just identified, it is not in the interests of justice that the Court compel compliance with the request. This reflects the reasoning and approach taken by this Court in Beneficial Finance, Alstom Power Ltd and Testel Australia Pty Ltd v Rickard.
Applying these general observations in the present case, I commence with the reference in paragraph [51] of the Thorne affidavit to “Ms McCormick’s findings”. During the course of oral argument, counsel for Mr Macks conceded that this request could not be maintained. In my view, that concession was properly made. While Ms McCormick’s findings might have existed in documentary form, the reference to those findings in paragraph [51] was not a clear and unambiguous reference to a specific document or documents. It was therefore not a reference to a document or documents that engaged the operation of rule 61(1). This conclusion is consistent with the conclusions reached in Lilypond Constructions (in relation to “instructions”), Balnaves v Smith (in relation to “legal advice”), Amos v Brisbane City Council (in relation to a “resolution”), and Calvary Health Care Adelaide Incorporated v Price (in relation to “reporting criteria”).
Turning to paragraph [29] of the Thorne affidavit, Mr Thorne referred to his “review of the documents held by ASIC”, before then summarising – at a very high level and in uncontroversial terms – several aspects of the Viscariello proceedings. I accept that this was a reference to documents for the purposes of rule 61(1). Further, I do not think that these words can be read down, or construed, as merely a reference to the particular documents that were the source of the items of information in the summary that followed. Even though it is inherently likely (as Mr Thorne’s second affidavit suggests) that the matters he deposed to came from only a subset of the “documents held by ASIC”, and indeed that he only individually considered or read a subset of those documents, nevertheless the affidavit referred to a review of “the documents held by ASIC”. It did not refer to a review of merely some of those documents. In my view, the only limitation that can be read into these words is that they were a reference to documents held by ASIC in relation to the Viscariello proceedings.
It is true that the reference to the documents held by ASIC in paragraph [29] was likely a reference to a very significant volume of documents. But I do not regard this as a basis for concluding that rule 61(1) was not engaged. Nor is the fact that a reader of the affidavit would not know what documents would fall within the description a basis for concluding the rule was not engaged. The reference was to a sufficiently clear and unambiguous class of documents to engage the operation of rule 61(1).
However, in my view, once regard is had to the nature (and in particular breadth) of the documents referred to, and the limited use sought to be made of these documents in paragraph [29] of the Thorne affidavit, the interests of justice do not support or require an order that ASIC provide Mr Macks with those documents. Mr Thorne was not purporting to summarise the content of all of the documents held by ASIC, and as such nothing turns upon his selection of the matters included within his summary. There is no suggestion that Mr Macks contests the accuracy of the summary provided by Mr Thorne. Even if he did wish to do so, as a party to the Viscariello proceedings he was well placed to do so without requiring access to the documents held by ASIC in relation to those proceedings. Mr Macks has, in any event, been provided with copies of the documents most likely to have in fact been used by Mr Thorne in drafting paragraph [29] of the Thorne affidavit.
I do not think there is any basis for contending that Mr Macks would be assisted in his understanding or assessment of the matters deposed to by Mr Thorne by having access to the documents. Nor is there any basis for suggesting that access to the documents would provide any basis for impugning the accuracy of, or even affect the weight to be attached to, any of the matters deposed to by Mr Thorne. While Mr Macks may wish to see the documents held by ASIC in relation to the Viscariello proceedings in case they happen to contain or reveal something of assistance to him in the forthcoming interlocutory applications, or more generally, I do not think that this is a sufficient reason to enforce compliance with rule 61(1).
In summary, an order for compliance with rule 61(1) in respect of the paragraph [29] documents is not supported or required by the rationale for that rule. Nor is it supported or required by the overarching objects of the Rules, as summarised earlier. To the contrary, an order for production of the documents referred to in paragraph [29] would only be productive of additional cost and inefficiency in the conduct of this litigation.
Similar reasoning applies in relation to the reference in paragraph [42] of the Thorne affidavit to “ASIC’s files”. I again accept that this was a sufficiently clear and unambiguous reference to particular documents, or at least a particular class of documents. However, having regard to the nature (and in particular breadth) of the documents referred to, and the use sought to be made of those documents in paragraph [42] of the Thorne affidavit, the interests of justice do not support or require an order that ASIC provide Mr Macks with all such documents. Again, Mr Thorne was not purporting to summarise or otherwise deploy the contents of ASIC’s files more generally. The files were referred to simply as the location of the correspondence in relation to the return of the subpoena mentioned in the Thorne affidavit. There is no suggestion that Mr Macks requires access to the ASIC files so as to understand the relevant section of the Thorne affidavit, or to test or impugn any of the matters deposed to therein. Mr Macks has, in any event, been provided with the correspondence file which contained the correspondence in relation to the relevant subpoena.
For all of these reasons, I decline to make any orders arising out of Mr Macks’ request for the provision of documents referred to in the Thorne affidavit under rule 61(1).
Application to serve a notice to produce or for disclosure of documents
As mentioned, Mr Macks also seeks permission to serve a notice to produce in respect of the four categories of documents in his draft notice to produce, or in the alternative an order that ASIC provide disclosure of those categories of documents. Counsel for Mr Macks acknowledged that the only contended relevance of the documents sought was in respect of the interlocutory issues to be determined at the forthcoming hearing. Mr Macks’ application thus seeks access to the documents for use in relation to the hearing of these applications or issues.
There is no express power under the Supreme Court Rules to issue a notice to produce returnable at an interlocutory hearing, or to order disclosure of documents on the grounds of their relevance to an interlocutory dispute. However, Mr Macks contends that the Court can and should make the orders sought pursuant to its general powers to make orders for the management of litigation under rules 116 and 117, or pursuant to its inherent or implied powers.
Addressing first the application to order disclosure of the four categories of documents, I agree with the reasoning and conclusion of Blue J in Proude v Visic[23] to the effect that rule 136(1), including the Court’s power to order the disclosure of documents under rule 136(1)(b), is confined to the disclosure of documents relevant to the ultimate issues in the action, as opposed to documents relevant merely to an interlocutory application brought in the course of the action. It follows that this rule does not empower this Court to order the disclosure sought in this case. That is so despite the fact that success by Mr Macks on the interlocutory applications may well have the practical effect of bringing the action to an end.
[23] Proude v Visic [2012] SASC 184 at [25]-[30].
However, I also agree with the reasoning and conclusion of Blue J in the same case to the effect that the Court does have power under rules 116(1) and 117(1), or in its inherent powers, to make an order for the disclosure of documents or information for the purposes of, and ancillary to, interlocutory applications where it is necessary in the interests of justice (including for the proper conduct of the proceedings).[24] But, as Blue J explained, the exercise of this power will require consideration of not only the relevance of the documents sought, but also the Court’s obligation to ensure the expeditious and economical disposition of the proceedings:[25]
[24] Proude v Visic [2012] SASC 184 at [20]-[23].
[25] Proude v Visic [2012] SASC 184 at [31]-[35].
While the Court has power to order disclosure of documents or information for the purposes of and ancillary to an interlocutory application, the position is markedly different to that under rule 136 in relation to disclosure of documents relevant to the issues in the action. In the latter case, the obligation to make disclosure is cast automatically by the Rules on the parties in all actions to which Chapter 7 applies and in this sense the opposite party may be said to have a prima facie “right” to disclosure. In the former case, the parties have no right to disclosure of documents for the purposes of interlocutory applications. The Court must first be satisfied that it is necessary “in the interests of justice” (or for the proper conduct of the proceedings). It is only when that pre-condition has been satisfied that the Court’s jurisdiction under rule 117(1) is enlivened.
In considering such an application, the Court should bear in mind that an application for disclosure invokes the compulsive process of the Court to require a party to produce documents or information against its will. This compulsive process should only be invoked where required in the interests of justice.
Rule 3 provides that:
The objects of these rules are …
(c)     to avoid all unnecessary delay in the resolution of civil disputes; and
(d)     to promote efficiency and dispute resolution so far as that object is consistent         with the paramount claims of justice; and
(e)     to minimise the cost of civil litigation to the litigants and to the State.
Rule 116(1)(b) itself provides for the Court to manage litigation to ensure that it is conducted as expeditiously and economically as is consistent with the “proper administration of justice”. The hearing of an application for and making of an order to compel disclosure of documents or information for the purpose of an interlocutory application would necessarily add both to the time and cost of the litigation.
This is not to say that there will not be cases from time to time in which it is in the interests of justice for the Court to order disclosure of documents or information for the purpose of and ancillary to an interlocutory proceeding. However, in the ordinary course, interlocutory matters are capable of being decided in accordance with the interests of justice without making such orders. When such an application is made, both the Court’s assessment of the interests of justice and the exercise of its discretion will involve weighing the prejudice to applicant if the order is not made against the effect of an order on what would otherwise be the respondent’s privacy and the time and cost occasioned by the application and order if made.

Turning to the four categories of documents sought by Mr Macks, I have set out the terms of the draft notice to produce earlier in these reasons. In essence category 1 is communications between ASIC and Mr Viscariello in relation to Mr Macks’ conduct, the Viscariello proceedings and the within proceedings. Category 2 is communications with Mr Basedow, the current liquidator of Bernsteen and Newmore, about the same matters as well as some earlier proceedings in which he sought to examine a former employee of Mr Macks. Category 3 is documents evidencing ASIC’s decision-making as to its involvement in the Viscariello proceedings, and the continued prosecution of these proceedings. Category 4 is documents evidencing ASIC’s investigation into Mr Macks’ conduct.
The first observation to make is that the quantity of documents encompassed within each of the categories is likely to be significant and to span a significant period of time. The time and expense associated with collating, reviewing and producing the documents is likely to be very significant indeed.
The second is that I am not satisfied that any of the categories will be of more than marginal relevance or utility to the resolution of the interlocutory issues to be determined at the forthcoming hearing.
Counsel for Mr Macks contended that the categories 1, 3 and 4 documents will be relevant to the question of delay by ASIC, and its reasons for not pursuing these proceedings seeking an inquiry under s 536(1) of the Corporations Act prior to findings being made in the Viscariello proceedings. While the documents in categories 1, 3 and 4 (and in particular category 3) will no doubt include some documents bearing on these matters, the requested categories extend well beyond documents bearing on these issues.
In any event, and more importantly, given ASIC’s approach or position in relation to the interlocutory issues to be argued at the forthcoming hearing, I am not satisfied that the documents will be of more than marginal relevance or assistance. ASIC does not contend, for example, that it could not have proceeded with these proceedings earlier. It does not assert that it lacked any particular documentation or information, or that it required more time to continue its own investigation. Rather, ASIC’s position is simply that given the essentially disciplinary nature of these proceedings, and the fact that they take as their starting point the findings of misconduct made in the Viscariello proceedings, it decided to, and considered it appropriate to, await the outcome of the Viscariello proceedings before pursuing these proceedings. In determining the interlocutory issues at the forthcoming hearing it will be necessary for me to determine whether ASIC was right to take this approach, and the relevance in this respect of the significant time and litigious activity that has transpired since Mr Macks engaged in the conduct sought to be investigated. However, the relevant point for present purposes is that the circumstances of, and reasons for, ASIC’s ‘delay’ are not the focus of the dispute. The focus of the dispute is the significance of these matters, and in particular whether they provide a basis for resisting the amendments, staying the proceedings as an abuse, or declining to order that there may be an inquiry. I am not satisfied that the documents in categories 1, 3 or 4 will be of sufficient relevance and utility to the determination of these issues to warrant the Court making an order for the disclosure of documents in relation to these interlocutory issues.
As to the category 2 documents, their contended relevance was as to the utility of the within proceedings, given that the matters sought to be inquired into under s 536(1) are matters that have already been canvassed at length in ASIC’s own investigations and in the Viscariello proceedings. ASIC’s response is that the utility of these proceedings lies in the disciplinary nature of the relief sought. While Mr Macks can rely upon the contended lack of utility in these proceedings in his submissions in the forthcoming interlocutory argument, given the nature of the dispute between the parties on this issue, I am not satisfied that access to ASIC’s communications with the new liquidator of Bernsteen and Newmore will be of more than marginal relevance or utility in the determination of the matters in issue.
In summary, while I accept that the Court has power in an appropriate case to order disclosure in relation to an interlocutory application or issue, it will only do so where it is necessary in the interests of justice and having regard to the need to ensure the efficient disposition of litigation. I am not satisfied that it is appropriate to order disclosure of the documents sought by Mr Macks in this case given their significant volume and the fact that I am not satisfied that they will be more than marginal relevance and utility to the interlocutory applications and issues to be determined.
Turning to the application for permission to serve a notice to produce, rule 215(1)(c) requires that a party who has been served with a notice to produce the document or documents in that notice at trial. A notice to produce directed to a party operates similarly to, although not in precisely the same way as, a subpoena addressed to a non-party. The similarities and differences in their operation were summarised by Rares J in Suzlon Energy Ltd v Bangad (in the context of a consideration of the Federal Court rule entitling a party to serve a notice to produce):[26]
A notice to produce is not a subpoena. That is because a subpoena is an order of the Court requiring the person to whom it is addressed to attend the Court to give evidence and or to produce documents. If a person disobeys a subpoena, he or she breaches that order of the Court and can be proceeded against for contempt. In contrast, a notice to produce under r 30.28 is not a Court order, although it gains its forensic authority as a requirement of the Court to produce a document or thing from r 30.28(3). In addition, an historical purpose for the issue of a notice to produce, still reflected in r 30.28(2), is that if the party served with it does not produce the document or thing called for, his or her opponent may lead secondary evidence of the contents or nature of the document or thing.
A notice to produce served pursuant to rules of court, such as r 30.28(3), has the same coercive effect as a subpoena. The party served with a notice to produce must comply with its requirement to produce the document or thing sought, unless excused by the Court … And, a party's failure to comply with a notice to produce that has been served in accordance with r 30.28(3), is a default by that party for the purposes of rr 5.22 and 5.23 and s 37P of the Federal Court Act that can attract significant forensic and procedural detriment.
[26] Suzlon Energy Ltd v Bangad (2011) 198 FCR 1 at [13]-[14].
While a party’s entitlement to serve a notice to produce under the Federal Court rule extends to notices to produce returnable at interlocutory hearings, the operation of a notice to produce under rule 215(1)(c) of the Supreme Court Rules is confined to notices to produce returnable at trial.
In support of a contention that this Court nevertheless has power under rules 116 and 117, or in its inherent powers, to give a party permission to serve a notice to produce in respect of an interlocutory application, Mr Macks’ counsel referred by an analogy to the Court’s power under rule 172(6) to give permission for a subpoena to made returnable ahead of trial. He submitted that it would be odd if the Court had power to compel the production of documents by a non-party ahead of trial, but did not have an equivalent power in respect of a party.
While it is true that the Court has power to make a subpoena returnable ahead of trial under rule 172(6), the primary rationale for this power is to enable the parties to access documents which will be relevant to the issues at trial ahead of trial so as to reduce the risk of inefficient interruptions to the progress of the trial as a result of needing to consider the contents of the documents produced.
This primary rationale does not extend to permitting access to documents relevant only to matters arising on an interlocutory application. That said, I accept that there are decisions of this Court that suggest a wider rationale, and which permit the use of subpoenas in the latter context.[27] However, as those authorities explain, leave to issue a subpoena for this purpose will only be appropriate where it is in the interests of justice, having regard, inter alia, to the overarching objects of the Rules and the need to ensure the expeditious and economical conduct of the litigation.
[27] New Ashwick Pty Ltd v IAMA Limited (No 1) [2000] SASC 416 at [13]; Steicke v Donaldson Walsh Lawyers (No 2) [2011] SASC 84 at [11], [14].
In any event, while I accept that there is some force in the analogy, I do not consider that this is a sufficient ground to sustain the existence of a power on the part of the Court to give a party permission to issue a notice to produce returnable on an interlocutory application. The notice to produce facility is a quite specific creation of the Rules, and I do not consider that the Court should lightly imply some greater or different facility in respect of such notices. To the extent that this is said to leave a lacuna in relation to the compulsory production of documents from a party, I consider that this is adequately addressed by the Court’s power (considered above) in appropriate cases to order the disclosure of documents relevant to interlocutory applications or issues.
Finally, even if I am wrong about this, and the Court does have power to grant permission to issue a notice to produce returnable at an interlocutory hearing, I would not exercise that power in the circumstances of this case given my earlier conclusions as to the significant breadth but marginal relevance and utility of the four categories of documents sought.
Conclusion
For these reasons, I dismiss Mr Mack’s interlocutory application seeking access to documents from ASIC.