Fraser v Gorilla Rush Pty Ltd ACN 659612012

[2025] NSWDC 438

District Court

New South Wales

Medium Neutral Citation:

Fraser v Gorilla Rush Pty Ltd ACN 659612012 [2025] NSWDC 438

Hearing dates:

19 and 26 September 2025

Date of orders:

29 October 2025

Decision date:

29 October 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

The subpoena issued to the Australian Communications and Media Authority filed on 29 July 2025 is set aside.

Catchwords:

CIVIL PROCEDURE – application to set aside subpoena issued to third party – where subpoena for production of documents held by regulator – whether subpoena amounts to a “fishing expedition” – whether subpoena lacks a legitimate forensic purpose – subpoena set aside

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law, ss 18, 31

Interactive Gambling Act 2001 (Cth), ss 8, 15(2A)

Uniform Civil Procedure Rules 2005 (NSW), r 33.4

Cases Cited:

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Mr Paul Fraser (Plaintiff)
Gorilla Rush Pty Ltd ACN 659612012 (First Defendant)
Mr Samuel Oliver Johnson (Second Defendant)

Representation:

Counsel:
Mr O Fagir (First and Second Defendants)

Solicitors:
My General Counsel (Plaintiff)
Holding Redlich (First and Second Defendants)

File Number(s):

2024/00272199

Publication restriction:

Nil

JUDGMENT

1. The statement of claim which initiated these proceedings was filed on 24 July 2024. The notice of motion the subject of this decision was filed on 26 August 2025 by the first and second defendants, Gorilla Rush Pty Ltd (“Gorilla Rush”) and Mr Samuel Johnson.

2. The action is a claim for damages by Mr Fraser against Gorilla Rush for payments allegedly due under a document referred to in the statement of claim as “GR Employment Agreement”, which was entered into by Mr Fraser and Gorilla Rush on or about 10 October 2022. Alternatively, Mr Fraser claims payment for services performed on a quantum meruit basis. Mr Fraser also claims damages from Mr Johnson, who was the sole director and secretary of Gorilla Rush, on the basis of allegations that a collateral contract came into existence between Mr Fraser and Mr Johnson in which Mr Johnson undertook to ensure that Mr Fraser was paid pursuant to the GR Employment Contract. Further, Mr Fraser alleges, in the statement of claim, that Mr Johnson made a misleading and deceptive representation to him in or about December 2022 that the GR Employment Agreement was not valid and binding because Mr Fraser was a UK national and that a “replacement agreement” would need to be entered into by Mr Fraser and another entity, causing Mr Fraser to enter into a further agreement with Picaterre Limited (“Picaterre”) called, in the statement of claim, “the Picaterre Agreement”. Other allegations of misleading and deceptive conduct are made against Mr Johnson, and Mr Fraser claims damages under s 18 and/or s 31 of the Australian Consumer Law in respect of all of the representations alleged.

3. At all material times, Mr Fraser has been a resident of the United Kingdom. Gorilla Rush is incorporated in Queensland, Australia. Mr Johnson resides in Queensland. There is no allegation in the statement of claim of any event in relation to the claims occurring in the state of New South Wales.

Notice of Motion

4. The notice of motion filed by the defendants on 26 August 2025 seeks the following orders:

1.   Pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005 (UCPR) the Subpoena to Australian Communications and Media Authority filed on 29 July 2025 be set aside in whole or in the alternative, if documents have been produced in answer to the Subpoena, that access to those documents produced be refused.

2.   The Plaintiff to pay the Defendants’ costs.

3.   Such further or other order as the Court sees fit.

5. The plaintiff opposes the application in the notice of motion.

Subpoena

6. The subpoena issued to the Australian Communications and Media Authority (“the ACMA”) sought the following documents:

1. Formal warnings under section 64A of the Interactive Gambling Act 2001 issued by the Australian Communications and Media Authority (ACMA) to the Digibrite Entities (defined below) in the period from 1 September 2022 to 30 June 2025.

2.   Correspondence between ACMA and the Digibrite Entities (or anyone on their behalf) in the period from 1 September 2022 to 30 June 2025.

3.   In this subpoena the Digibrite Entities means:

(a)   Digibrite SRL;

(b)   Green Tree Marketing S.R.L;

(c)   Yellow Birch Infomatics S.R.L;

(d)   Any other entity associated with any of the following urls;

(i)   luckiest.com;

(ii)   royalreels,com;

(iii)   reefeels.com; and/or

(iv)   rocknreels.com.

Evidence and submissions for Mr Fraser

7. The plaintiff, Mr Fraser, relied upon his affidavit sworn on 21 September 2025.

8. In his affidavit, Mr Fraser says that one of his claims is that Gorilla Rush owes him wages pursuant to the GR Employment Agreement.

9. Mr Fraser refers to a proposed amended statement of claim which is annexed to his affidavit. This proposed amended statement of claim has not yet been the subject of any application in this Court. Mr Fraser says, in his affidavit:

However an application will shortly be filed to transfer these proceedings to the Federal Court of Australia and for leave to file the proposed Amended Statement of Claim substantially in the form referred to …

10. The proposed amended statement of claim includes an allegation that Gorilla Rush breached the Fair Work Act 2009 (Cth) by its failure to pay Mr Fraser the salary to which he was entitled, and that Mr Johnson was an accessory to that contravention by Gorilla Rush.

11. In his affidavit, Mr Fraser notes that, in its defence, Gorilla Rush says that an Independent Contractor Agreement (“the Picaterre Agreement”) was entered into between Mr Fraser and Picaterre on about 8 November 2023. The defence further pleads that the Picaterre Agreement “memorialised a verbal agreement for [Mr Fraser] to provide services as an independent contractor which [Mr Fraser] requested on or about 21 November 2022” and “made Picaterre (an Alderney company, controlled by Johnson that has been voluntarily wound up) responsible for my all of wages from 10 October 2022 instead of Gorilla Rush.” [sic]. I take judicial notice that Alderney is one of the Channel Islands, located between Great Britain and France close to the coast of Normandy, and part of the Bailiwick of Guernsey, a self-governing British Crown Dependency.

12. Mr Fraser says that he denies the existence of any such verbal agreement, and he relies on an email of 14 March 2024 to him from Mr Johnson, in which Mr Johnson says:

…we are unable to replace the employment agreement entered into between Gorilla Rush and yourself, in October 2022. Despite any discussions or considerations to the contrary, we cannot enter into a new agreement that would supersede the original. …

13. Mr Fraser notes that, in the defence, it is pleaded that the email of 14 March 2024 refers to the employment agreement by mistake and should, instead, have referred to the Picaterre Agreement.

14. Mr Fraser says that two of the issues in these proceedings are whether:

(a)   the Picaterre Agreement was entered into to memorialise a verbal agreement I requested November 2022 and;

(b)   Johnson mistakenly referred to the GR Employment Agreement instead of the Picaterre Agreement in the Email.

15. In relation to the subpoena the subject of the application, Mr Fraser says:

12   The ACMA subpoena was issued to obtain material to investigate whether Johnson had other reasons to:

(a)   enter into the Picaterre Agreement, for example that he wanted to enter into the Picaterre Agreement to show that my work on luckiest.com was not being undertaken by an employee of an Australian company because of an investigation by the Australian Communications and Media Authority at a later date (“ACMA”); and/or

(b)   refer to the GR Employment Agreement in the Email, for example that he no longer wished to rely upon the Picaterre Agreement due to developments in the investigation ACMA.

If documents answering the ACMA Subpoea support the above, then they could be put to Johnson in cross examination to test the claims made in the Defences of Gorilla Rush and Johnson, as set out in 6(a) and 8 above. …[sic]

16. Mr Fraser refers, in his affidavit, to a Business Plan for Picaterre which refers to luckiest.com as evidence that Mr Johnson was associated with luckiest.com. Mr Fraser believes that this association is uncontested.

17. Mr Fraser refers to a conversation he had with Mr Johnson “toward the end of my work with Gorilla Rush and Johnson” in which Mr Fraser asked Mr Johnson “about his affiliates and whether they could refer traffic to luckiest.com”. Mr Fraser says that Mr Johnson mentioned numerous affiliate sites, including the sites named in the subpoena at paragraph 3(d)(ii), (iii) and (iv).

18. Mr Fraser also relied upon a screenshot as at 16 April 2023 from royalreels.com in which the Privacy Policy and a page entitled “Security, Software and Privacy” mention Digibrite SRL. He further relied upon a screenshot from royalreels1.org taken on about 25 July 2025 which says “At Digibrite SRL, we are committed to safeguarding our customers’ personal data”. The same statement appears on a screenshot of the Privacy Policy from royalreels,online. Further, Mr Fraser relies upon a screenshot taken on 13 October 2024 of the Terms and Conditions on the website reefspins1.com which says “This site is owned by Digibrite SRL…”. Mr Fraser relied upon these documents in support of his assertion that Mr Johnson is associated with the “Digibrite entities” referred to in the ACMA Subpoena.

19. Mr Fraser further relied upon documents downloaded from the ACMA website on or about 25 July 2025 which he said are “partially redacted copies of warnings issued by ACMA to Digibrite SRL, Green Tea Marketing SRL and Yellow Birch Infomatics SRL.”

20. The plaintiff’s argument in relation to the material the subject of the subpoena was summarised in the following way (T 19 September 2025 p 4 line 16–27):

The plaintiff’s position is that if the defendants - and in particular the second defendant - were subject through perhaps related entities or sites subject to investigations by ACMA, that that provides an alternative reason for them to, first, enter into the independent contractor agreement - ie, not because it was to memorialise a verbal agreement - and second, that again, the existence of such an investigation may provide a basis for the second defendant to indeed seek to revert to the employment agreement.

You can imagine, your Honour, that if there are investigations about breaches of online gambling provisions, then whether certain entities employ people that work on online gambling sites are employed in Australia or out of Australia might be something that the defendants weren’t interested in. [sic]

21. It was conceded that the proposed amended statement of claim does not plead the email of 14 March 2024 as part of a positive cause of action. It was further conceded that the proposed amended statement of claim does not plead the allegation that Mr Fraser was told that the employment agreement was invalid. However, it was submitted, the proposed amended statement of claim has not yet been filed (T 26 September 2025 p 11). The intended inference from this submission is that the proposed amended statement of claim may be further amended. There was also a suggestion that the content of the email of 14 March 2024 and the allegation that Mr Fraser was told that the employment agreement was invalid might be raised in a reply.

22. At the resumed hearing on 26 September 2025, Mr Fraser’s position in relation to the subpoenaed material was put in the following way (T 13 line 20–45):

So effectively to summarise, we have a significant dispute about why the second agreement was entered into in November 2023 and we have a dispute about whether or not the second defendant mistakenly referred to the employment agreement in his email of 14 March. The purpose of the subpoena is to seek documents that may go to alternative reasons for the defendants to want to enter into the Picaterre agreement in November 2023 and in respect of the email of 14 March whether there were other motivations or reasons to actually refer to the employment agreement as he did essentially to undermine his position that he did that mistakenly.

We do not go so far as to say as a hypothesis that Mr Johnson the second defendant wanted to show that certain employees related to luckiest.com were in or not in Australia. We do say that the existence of an investigation by ACMA is something that can be put to Mr Johnson in cross‑examination to test both of the claims I’ve referred to. We do say that if there is an investigation then again because that investigation in some way relates to the substratum of the facts in this case, that is a relevant matter that can be put to Mr Johnson to test his credit generally.

I make one other observation. My learned friend explained why we were here and he referred to a letter from my firm alluding to the possibility of a further subpoena. Whilst I accept that’s one explanation I note that the controversy with respect to this subpoena started before that letter. There are two other explanations for why we’re here. The first is that the defendants had something to hide. The second is that the defendants are taking this opportunity to deplete the plaintiff’s resources. It could be both. I of course have no evidence. I can’t point to anything that suggests one or more of those possibilities more than the other.

23. It was submitted that caution should be exercised in circumstances where the defendants have not identified any substantive prejudice to them arising from the subpoena.

24. It was further submitted that the ACMA notices refer to s 15(2A) of the Interactive Gambling Act 2001 (Cth), which provides:

(2A) A person must not provide a prohibited interactive gambling service that has an Australian - customer link (see section 8).

Civil penalty:  7,500 penalty units.

A gambling service has an Australian – customer link only if any or all of the customers of the service are physically present in Australia (see s 8 of the Interactive Gambling Act 2001).

25. The value of a penalty unit in Commonwealth legislation is $330 and has been $330 since 7 November 2024. The present maximum fine would therefore be 7,550 x $330 = $2.49m. The value of the penalty unit at the time of the notices issued by the ACMA in August 2022 and June 2023 was $222 and $275 respectively. The point made in the plaintiff’s case with respect to s 15(2A) of the Interactive Gambling Act 2001 was that it provided for severe financial penalties in the event of a breach.

Evidence and submissions for Gorilla Rush and Mr Johnson

26. In support of the motion, the defendants relied upon two affidavits of Mr Stephen Trew dated 26 August 2025 (“Mr Trew’s first affidavit”) and 25 September 2025 (“Mr Trew’s second affidavit”). Mr Trew is a partner of Holding Redlich and the solicitor on record for the first and second defendants.

27. In Mr Trew’s first affidavit, he says:

13.   I am informed by the Second Respondent and believe:

a.   luckiest.com utilises a software solution platform created by Digibrite S.R.L; and

b.   the Second Respondent is not a director of, or otherwise involved in:

i.   “Digibrite S.R.L” other than as described in 13(a) above;

ii.   “Green Tree Marketing S.R.L”:

iii.   “Yellow Birch Infomatics S.R.L”,

iv.   “royalreels.com”;

v.   “reefeels.com”: or

vi.   “rocknreels.com”.

14.   From my review of the ACMA Subpoena, it appears that the categories lack any legitimate forensic purpose, will capture documents which are not relevant to the facts in issue in the proceedings, and which amount to a fishing expedition.

28. Annexed to Mr Trew’s second affidavit was a bundle of documents referred to as ST-2.

29. ST-2 contains an exchange of emails concerning Mr Fraser’s contractual arrangements with Gorilla Rush and Picaterre. An email from Mr Johnson to Ms Cook, Business Manager of Gorilla Rush, is entitled “Draft agreement Paul for review” and says, in part:

He is in the process of setting up a company so he can split income with his wife/reduce taxes etc.

I think we need to look at a contractor agreement for him. It makes no difference to me, except it saves me some money.

…

30. ST-2 contains an email dated 8 September 2023 entitled “Updates to Paul’s contract” in which Mr Fraser provides Ms Cook with his new company name. The company address is in the Isle of Man, which is in the Irish sea between Great Britain and Ireland. Emails earlier on 8 September 2023 between Ms Cook and Mr Fraser, with the same heading, refer to Picaterre and the contract being changed to “reference” Picaterre.

31. ST-2 also contains screenshots of “a Gorilla Rush headcount” which shows that there are “workers engaged by the First Defendant” in Brendale, Queensland.

32. ST-2 includes the Services Agreement between Picaterre and Gorilla Rush dated 16 December 2022.

33. ST-2 further includes an exchange of emails between Mr Fraser and Ms Cook dated 14 February 2024 which refer to a contract and a resignation for further discussion. It also includes a screenshot, said to be from the public website duplichecker.com/domain-age-checker.php, which apparently indicates that the website “royalreelsreviews.com” was created on 9 June 2025.

34. In their written submissions, the defendants say that the principal issues arising in this matter are:

(a)   whether the written employment agreement between the plaintiff and Gorilla Rush was discharged and replaced by the written independent contractor agreement between the plaintiff’s corporate vehicle and Picaterre;

(b)   whether a representation made by Gorilla Rush or Mr Johnson was misleading or deceptive and whether it caused loss; and

(c)   whether the plaintiff performed work in accordance with the employment contract.

35. It is submitted, in the defendants’ case, that it is difficult to discern a connection between the subpoena and the matters in issue in the proceedings.

36. The defendants understand that the plaintiff seeks to establish some relevance on the basis that the defendants are involved in the operation of the website “luckiest.com”, that contraventions of the Interactive Gambling Act 2001 would adversely reflect on Mr Johnson’s character and that Mr Johnson’s character is relevant to the credibility of his evidence in this case.

37. The defendants further understand the plaintiff to allege that the ACMA may have investigated the operation of certain websites, including luckiest.com, in Australia, that it follows that Mr Johnson may have had an incentive to seek to disassociate Gorilla Rush, and Australian company, from luckiest.com, that by asserting that Mr Fraser was party to an agreement with Picaterre rather than Gorilla Rush, Mr Johnson would disassociate Gorilla Rush from the operation of luckiest.com and that Mr Johnson’s incentive to achieve that disassociation may be relevant to the Courts assessment of evidence which may be led in connection with the email of 14 March 2024.

38. The defendants submitted that the plaintiff bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. A legitimate forensic purpose has been explained in the following way:

It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. 

(Secretary of the Department of Planning v Blacktown City Council [2021] NSWCA 145 “Blacktown City Council case” at [65] per Bell P)

It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.

(Blacktown City Council case at [80] per Bell P)

… the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena.

(Blacktown City Council case at [89] per Brereton JA)

39. It was submitted, on behalf of the defendants,

10.   Documents will add “in some way” to the relevant evidence and be sought for a legitimate forensic purpose if they are capable of providing a legitimate basis for cross-examination or go to credit. However, it is impermissible for a subpoena to trawl for documents that may be used to impugn the credit of a particular witness. The principles in this regard were summarised by Pembroke J in Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870 at [19] terms of which have been repeatedly approved:

(a)   As a general principle, the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose… It is not therefore an objection, by itself, that the subpoena seeks documents relating only to credit… On the other hand, in order to support the subpoena, it is not sufficient, by itself, merely to say that the documents relate to the credit of a witness;

(b)   In all cases, there must be some actual identifiable basis - reasonably precise and tolerably clear - that indicates what the legitimate forensic purpose really is. The forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined;

(c)   If the subpoena is legitimate, two features of its intended forensic purpose will usually demonstrate its legitimacy. First, the particular credit issue will be capable of reasonable articulation, making due allowance for the necessity for some generalisation depending on the stage that the hearing has reached. Second, the probable connection between the documents sought to be produced and that credit issue, will be apparent;

(d)   A credit issue of doubtful plausibility is unlikely to be sufficient to justify the subpoena. The same result will follow if the supposed connection between the credit issue and the documents sought, is strained, opaque or speculative;

(e)   The court will exercise particular caution when a subpoena is sought to be justified solely on the credit basis … The judge must be satisfied about the utility of the production of the documents, and the fairness to the witness, having regard to the potential for abuse and the need to control and confine cross examination within manageable limits;

(f)   A subpoena that does little more than speculatively trawl for documents that may possibly be used to impugn a witness’s credit has never been justifiable ….

40. In Thomas v SMP (International) Pty Ltd (No 2) (“SMP”), Pembroke J set aside the subpoena, concluding:

21.   In this case, there is, in fact, no sound evidentiary basis for me to infer that the transcript of Mr Willett’s evidence to the Commission contains any statements by him that might be capable of being deployed to impeach his credit. The propensity of the transcript to achieve that result is utterly speculative. The mere fact that the subject matter is Mr Barkl’s alleged money laundering activities does not advance the analysis beyond guesswork and innuendo.

41. The defendants submitted that, to the extent that the subpoena was sought to be justified on the basis that a breach of the Interactive Gamblin Act 2001 by an entity with which Mr Johnson is associate has some bearing on his credit, the subpoena cannot stand. A breach of legislation by an entity does not bear upon the credibility as a witness of every person associated with that entity. Obviously, there can be no argument that such a breach bears upon the credibility of a person who has no relationship with that entity. It was submitted that there is no reasonable basis beyond speculation that the documents might bear on the credibility of Mr Johnson’s evidence in these proceedings.

42. It is accepted, by the defendants, that Gorilla Rush and Mr Johnson are involved in the operation of luckiest.com. However, it is submitted, there is no basis for a conclusion that Mr Johnson has any connection to the other six entities named in the subpoena.

43. It was submitted that the plaintiff must be aware that there are no ACMA warnings in relation to luckiest.com. Such warnings are public, and the searches undertaken by the plaintiff have been produced. None relate to luckiest.com.

44. It is understood that the plaintiff argues that the documents produced by the ACMA in response to the subpoena might be relevant to the view taken of the email of 14 March 2024 because it might provide a reason why Mr Johnson might wish to disassociate the plaintiff’s work from Australia and thus disassociate the plaintiff’s work from Gorilla Rush, an Australian company. The defendants submitted that this argument amounted to “not just speculation but multi-layered speculation”. The defendants submitted that the plaintiff’s argument involves the following successive conjectures:

1. the operation of luckiest.com may have been the subject of some investigation by ACMA (which there is no evidence to support),

2. the location of people providing services to Gorilla Rush was, in some way which is not specified, relevant to the compliance of that operating entity with the Interactive Gambling Act 2001,

3. it would be significant in some way to ACMA whether the plaintiff was providing services to Gorilla Rush as an employee or as an independent contractor through Picaterre as an intermediary,

4. ACMA’s investigation would be effective to identify the location of Gorilla Rush employees, but ineffective to identify cases where services were being supplied to Gorilla Rush by contractors through Picaterre, and

5. Mr Johnson would therefore have an incentive to deny, falsely, in an email to the plaintiff sent after the provision of services, that the plaintiff was an employee of Gorilla Rush.

45. The defendants submitted that it should be borne in mind that there is evidence that the independent contractor arrangement was entered into at the request of the plaintiff (see [29]–[30] above). Further, Gorilla Rush employed a group of workers in Australia in connection with luckiest.com, so that Mr Fraser’s employment status could not affect any perception of the connection of Gorilla Rush with Australia, even if that were relevant. Further, any investigation would disclose the services agreement between Gorilla Rush and Picaterre, so that any independent contractor engaged by Picaterre to perform services for Gorilla Rush could readily be discovered.

46. The defendants characterised the plaintiff’s argument that the change in arrangements for Mr Fraser in his work for Gorilla Rush may have been part of a scheme to create a perception for ACMA as “fanciful”.

47. The defendants submitted that there is no basis beyond speculation upon which the Court could be satisfied that the documents sought by the subpoena might materially assist on an identified issue or add in some way to the relevant evidence in the case.

Consideration

48. The defendants apply to have the subpoena issued to the ACMA set aside.

49. It has been conceded that the defendants are associated with luckiest.com. There is insufficient evidence to conclude that either Gorilla Rush or Mr Johnson are associated with the other urls named in the subpoena in any way, let alone in such a way as to have anything investigated in relation to those urls have an impact upon Mr Johnson’s credit.

50. There is insufficient evidence to link either of the defendants with the entities named in paragraph 3 of the subpoena.

51. Even if a link had been established between the entities or the urls named in the subpoena, and even if there were a sufficient basis to believe that there was an investigation at some time by ACMA in relation to those entities or urls, there is no basis to think that any such investigation would impact upon the credibility of the evidence of Mr Johnson generally or in this matter, which relates, presently, to Mr Fraser’s entitlements under his contract with Gorilla Rush. It follows that there is no reason to think that any such investigation in relation to luckiest.com would impact upon the credibility of the evidence of Mr Johnson in this matter.

52. Given that Gorilla Rush has a group of employees or service providers working in Queensland, Australia, and that any investigation of Gorilla Rush would disclose that fact, there is no reason to think that there would be any advantage to Mr Johnson or Gorilla Rush in concealing Mr Fraser’s true status as either an employee of Gorilla Rush or an independent contractor providing services through Picaterre and his work on luckiest.com from the ACMA.

53. I accept the defendants’ submission that the plaintiff’s argument that the ACMA documents could be relevant to Mr Johnson’s motivation to change Mr Fraser’s work status is based upon a series of conjectures and is utterly speculative. The subpoena is contrary to the principles set out in the judgment in SMP.

54. The documents sought by the subpoena are not apparently relevant in the sense that they will materially assist on an identified issue. There is no reasonable basis beyond speculation that it is likely that the documents sought by the subpoena will assist the Court in this case.

55. In the course of the hearing, I expressed my reservation as to whether this Court had jurisdiction in this matter. It is not apparent, on the material before me, that the issues in the case have any nexus with the State of New South Wales. The plaintiff indicated that he intended to pursue the matter in the Federal Court of Australia.

Conclusion and orders

56. For the reasons set out above, the subpoena issued to the Australian Communications and Media Authority filed on 29 July 2025 should be set aside.

57. The following order will issue:

1. The subpoena issued to the Australian Communications and Media Authority filed on 29 July 2025 is set aside.

58. I will hear the parties as to costs.

**********

Decision last updated: 29 October 2025