Goldie v Gordon Theodore HOTHERSHALL Getley as Executor of the Estate of Janet May Goldie [No 2] - [2010] WASC 66

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GOLDIE -v- GORDON THEODORE HOTHERSHALL GETLEY As Executor of the Estate of JANET MAY GOLDIE [No 2] [2010] WASC 66

CORAM: SIMMONDS J

HEARD: 3 FEBRUARY & 16 MARCH 2010

DELIVERED : 31 MARCH 2010

FILE NO/S: CIV 2109 of 2006

BETWEEN: JOHN GOLDIE
Plaintiff
AND
GORDON THEODORE HOTHERSHALL GETLEY As Executor of the Estate of JANET MAY GOLDIE
First Defendant
GORDON THEODORE HOTHERSHALL GETLEY As Trustee for CHRISTOPHER GOLDIE and EMMA GOLDIE TRUST
Second Defendant

Catchwords:

Practice and procedure - Orders made ex parte granting leave to issue subpoenas returnable before trial - Application to set subpoenas aside - Whether legitimate forensic purpose shown - Whether abuse of process shown - Relevance of failure to provide without request application and supporting affidavit to other party

Practice and procedure - Application out of time to set aside paragraph in pleading - Whether extension of time should be granted

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19(3)(a), O 26A, O 36B r 3(6), O 36B r 4(1), O 36B r 5(1), O 36B r 5(2), O 59 r 9

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Ms K J Levy
First Defendant             :     Mr G D Cobby
Second Defendant         :     Mr G D Cobby

Solicitors:

Plaintiff:     Kroon Legal
First Defendant             :     Brickhills
Second Defendant         :     Brickhills

Case(s) referred to in judgment(s):

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brand v Digi‑Tech (Australia) Pty Ltd [2001] NSWSC 425
Burton v Karbowsky (1914) 14 SR (NSW) 373
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337
Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Commonwealth v Albany Port Authority [2006] WASCA 185
Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194
Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32
Hunt v Russell (1995) 63 SASR 402
Jack Brabham Engines Ltd v Bease [2010] FCA 35
Joye v Rehuxo Pty Ltd [1999] NSWSC 785
Lucas Industries Ltd v Hewitt (1978) 45 FLR 174
Morgan v Morgan [1977] 2 All ER 515
Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Secretary, Department of Immigration & Multicultural & Indigenous Affairs v Behrooz [2002] SASC 370
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710
Stanley v Layne Christensen Co [2004] WASCA 50
Tajik Aluminium Plant v Hydro Aluminium AS [2006] 1 WLR 767
Tobin v Ezekiel [2008] NSWSC 1108
Trade Practices Commissioner v Kimberley Homes Pty Ltd (1989) 217 ALR 110
White v Overland [2001] FCA 1333

SIMMONDS J:

Introduction

This is an application to set aside subpoenas for the production of documents before the date of trial. Those subpoenas had been issued pursuant to orders I made ex parte. The applicant also seeks the setting aside of certain pleadings and an extension of time for that purpose.

Background

The applicant is the plaintiff in an action against the respondents as defendants for breach of the trusts on which certain shares were said to be held by the first defendant. Julie Susan Goldie is the applicant's wife.
By the further re‑amended defence and counterclaim filed 3 June 2009 the second defendant seeks by his counterclaim (the counterclaim) an amount with interest which he pleads he had advanced to the plaintiff by an oral agreement made in or about December 2001 and later evidenced by writing. The counterclaim states that the amount became repayable under the agreement by virtue of the sale or other disposal of the plaintiff's interest in a business. That business was Cartridge World, Cottesloe (the business).
The business was one conducted under franchise arrangements. Ink Mark Pty Ltd is the master franchisee under those arrangements.
By motion dated 11 November 2009 the defendants applied for leave to issue subpoenas addressed to Mrs Goldie and to Ink Mark to produce documents before trial. Such leave was required under Rules of the Supreme Court 1971 (WA) O 36B r 3(6). The application was made ex parte, and it was not in contest that the application for leave could be so made.
Following a hearing on 4 December 2009 of that application, I made orders giving leave to issue subpoenas. The subpoenas were subsequently issued specifying a return date of 19 January 2010 (the subpoenas). The date listed for the commencement of the trial in the action is 12 April 2010.
The subpoena addressed to Ink Mark (the Ink Mark subpoena) was in material part as follows:
The documents and things you must produce are as follows:
1.all documents relating to the sale and purchase of the franchise business known as Cartridge World, Cottesloe in or about 2001;
2.all communications received from John Goldie or Julie Susan Goldie in respect of that business,
for the period 1 January 2001 to 31 December 2006.
The subpoena addressed to Mrs Julie Goldie (the subpoena to Mrs Julie Goldie) was in material part as follows:
The documents and things you must produce are as follows:
1.all documents relating to the purchase of the franchise business known as Cartridge World, Cottesloe;
2.all taxation returns and financial returns recording any financial interest or claim you had in relation to the franchise business known as Cartridge World Cottesloe;
3.your taxation returns for the financial years ending 30 June 2001, 30 June 2002 and 30 June 2003.

The application to set aside the subpoenas

By chamber summons dated 12 January 2010, the applicant applied to set aside the subpoenas. Subsequently I made orders by consent vacating the return date for the subpoenas and programming the hearing of the application.
It was not in contest that I had jurisdiction to set aside the subpoenas on that application. I consider that my jurisdiction may be rested on the basis that 'where an order is made ex parte the court or Judge making it may, upon application of any person prejudicially affected by it, review and, if necessary, discharge it': Commonwealth v Albany Port Authority [2006] WASCA 185 [23] (Steytler P). I consider the applicant to be a person prejudicially affected by the order, in that his affairs are ones to which the subpoenas relate because, as I will explain, there is evidence he as well as, or rather than, Mrs Julie Goldie has had an interest in the business. Thus, I do not have to consider whether or not I have jurisdiction to set the subpoena aside under O 36B r 4(1) because the applicant is either a 'party' or a person with a 'sufficient interest' for the purpose. I consider that under that sub‑rule 'party' refers to a party to the action, rather than the addressee to the subpoena. The former construction appears to be supported by the usage in O 36B r 4 and r 5. Contrast the form of the corresponding rule in New South Wales as described in Joye v Rehuxo Pty Ltd [1999] NSWSC 785 [22] ‑ [24] (Foster AJ); but see the apparently different view of 'party' in Civil Procedure in Western Australia [36B.0.27]. At the same time, it might be contended that the applicant is a person with a 'sufficient interest' by reason of the same matters as those which in my view give him standing on the basis in Albany Port Authority [23]. However, I consider I do not have to go further into these matters.
It seems to me also that the person seeking the review on either basis is not required to point to evidence not made available to the court at the original hearing.
In any event, the applicant relied on two affidavits in support of his application. One was from the applicant himself, sworn 2 February 2010 with an attachment (the affidavit of the applicant of 2 February 2010). The other was from Kurt John Muller, a director of Ink Mark, sworn 2 February 2010 with an attachment (the Muller affidavit).
I turn now to consider the bases on which the applicant put to me I should set aside the subpoenas. I begin with a matter the applicant put to me, as I understood his counsel's submissions, which was one that, on its own or in conjunction with the matters relevant to the other bases relied upon, meant I should set the subpoenas aside.

Communications with court not disclosed

The applicant here directed my attention to the fact that the respondents had not given the applicant a copy of each of the applications for leave to issue the subpoenas of 11 November 2009 and the affidavit in support of that application. That affidavit was of Trevor Howard Brickhill, a solicitor for the defendants, sworn 11 November 2009 with attachments (the Brickhill affidavit of 11 November 2009). It appeared not to be in contest that the applicant had not seen that affidavit before the hearing of 3 February 2010.
It was not contended at the hearing of the present application that those materials should have been provided before the ex parte hearing. However, counsel for the applicant contended that they should have been provided as soon as possible thereafter. She put particular reliance on the Law Society of Western Australia, Professional Conduct Rules, 2008 Revision (PCR), r 14.11 and r 14.12.
I consider that on the positions taken by the parties only PCR r 14.12 has possible application. It reads:
14.12 If counsel has a discussion with the court regarding the issues in a case in the absence of the other counsel, counsel must fully inform the other counsel about those discussions at the earliest opportunity.
It was not contended that there had been non‑compliance with O 36B r 5(2), requiring service of any subpoena to produce on any 'party', being here the applicant, as soon as practicable after the subpoena has been served on the 'addressee'. It was also not contended that the respondents had failed to comply with any request for the provision to the applicant of the materials referred to: no request had been made. Those materials were both filed documents, accessible to the applicant from the court. True it is that materials of that kind would likely be, as counsel for the applicant submitted, the basis on which the Court would have found the legitimate forensic purpose required for an order under O 36B r 3(6). I reach that requirement below. Undoubtedly, an application of the present kind might be assisted by the examination of materials of that kind. It is not in contest that was the case with the materials in this case. However, it was not suggested here that the respondents had led the applicant to believe there were no such materials. Further, the applicant, as has been seen, did not request them prior to the hearing on 3 February 2010, and did not at the hearing seek its deferral to permit an examination of them.
I have noted White v Overland [2001] FCA 1333, to which counsel for the applicant drew my attention, where at [4] Allsop J said this, in a case not involving an application of the present kind (emphasis in the original):
However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game.
I have concluded that these views, which I strongly accept, have no application here. There is no basis in my view for a suggestion that the respondents had not taken steps to ensure the applicant was cognisant of what the issues were. Those steps were their compliance with O 36B r 5(2). The applicant was thereby made cognisant of proceedings having been successfully taken under O 36B r 3(6), and the applicant had access to the documents filed in relation to those proceedings.
In those circumstances, it seems to me that the obligation in PCR r 14.12 does not bear on the disposition of the present application. It seems to me that r 14.12 has no application to a case where an obligation like that under O 36B r 5(2) has been complied with and the 'communications' in question are filed documents.
Nevertheless, it may be that under PCR r 14.12 the respondents ought to have drawn the applicant's attention to the existence of the materials referred to. However that may be, in circumstances where O 36B r 5(2) has been complied with, the 'communications' are filed documents and the applicant has not sought the documents prior to the hearing or sought deferral of the hearing to permit their examination, such a failure is not a factor which should influence my disposition of the application.
I put aside then the fact the respondents had failed to provide the applicant with copies of the application of 11 November 2009 for leave to issue the subpoenas and the Brickhill affidavit of 11 November 2009.

Whether a legitimate forensic purpose has been shown

On any application for leave to issue a subpoena under O 36B r 3(6), the applicant must satisfy the Court that there is a legitimate forensic purpose for the issue: see Albany Port Authority [18] (Steytler P) and [68] (Pullin JA). Steytler P at [18] says this, referring to among other authorities, Stanley v Layne Christensen Co [2004] WASCA 50 :
It is not in dispute that, before the Master could make an order pursuant to O 36 r 12(4), he was required to be satisfied that the subpoenas were issued for a legitimate forensic purpose: see, for example, Fried v National Australia Bank Ltd (2000) 175 ALR 194 at 200 [29]; Darbyshire v Gilbert (2006) 31 WAR 558 at [14] and Stanley … at [9]. In Australian Gas Light Co v Australian Competition & Consumer Commission [2003] ATPR 41-956 at [8] (cited with approval in Darbyshire at [13]), French J, speaking of O 27 r 6 of the Federal Court Rules 1974 (Cth), said in this respect that:
'It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.'
In Stanley, at [9], the Court said:
' … In concluding that a legitimate forensic purpose had been established for the first and second respondents to issue a subpoena requiring the production of copies of the affidavits in the Family Court proceedings the learned Master [who was Master Sanderson] identified the principles which regulated the decision which he was required to make as follows:
"There are, I think, four points of principle which emerge from the cases. They are:
(1)A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation(1998) 19 WAR 350 at 374; National Employers' Mutual General InsuranceAssociation Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors (2000) 18 ACLC 609 at 613 - 614.
(2)In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforseen evidence-in-chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and [sic] fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi‑Tech [2001] NSWSC 425.
(3)At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: see Khanna v Lovell White Durrant [1995] 1 WLR 121 at 123.
(4)There is no requirement that to avoid the stigma of fishing, a party must already by [sic] in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors(2001) 105 FCR 136 at 143 - 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey(supra) at 143."
We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena … should be allowed to stand [sic].'
It must consequently be assumed that the Master was satisfied of these matters (albeit after only a brief examination of the relevant documents and subject to the making of any objection) before giving the appellant leave to issue the subpoenas and ordering that they be returnable before the Court on 4 April 2006. No objection has been made to those orders by any party or person affected by them.
The respondents in the ex parte hearing before me relied, for such legitimate purpose, on what the Brickhill affidavit of 11 November 2009 [6] states is an issue in the action. That issue is whether the applicant had any proprietary or financial interest in the business, or whether the sole proprietary or financial interest in the business rested with Mrs Julie Goldie.
For the purpose of establishing that that matter was an issue in the action, I was, both at the ex parte hearing and the hearing of the present application, referred by the respondents to the earlier affidavit of Trevor Howard Brickhill, sworn 30 July 2009, itself forming an annexure to the Brickhill affidavit of 11 November 2009. The affidavit sworn 30 July 2009 in turn annexed an affidavit of discovery by the applicant sworn 21 October 2008, in response to an order for specific discovery in the action I made on 10 October 2008. In that affidavit of discovery [8] the applicant deposed as follows (emphasis added):
Similarly, I do not have any documents in my possession, custody or power relating to my investment in Cottesloe Cartridge World, which have not been discovered in these proceedings previously, as such other documents, to the extent I had them prior to these proceedings, have been misplaced or destroyed through inadvertence or accident.

At the initial hearing on the present application, the respondents also drew my attention to an affidavit of Julie Le sworn 22 January 2010 (the Le affidavit). Ms Le is a solicitor in the firm acting for the respondents. She annexes certain taxation returns of the applicant and deposes that her inspection of them indicated that he had personally claimed losses for the financial years ending 30 June 2002 and 30 June 2003 from the trading of the business, and that after June 2003 he no longer claimed any loss or income from the trading of the business.
Further, one of the other annexures to the Le affidavit is a witness statement of Mrs Julie Goldie filed in the action and dated 7 September 2009. At [67] of the witness statement Mrs Julie Goldie deposes (emphases supplied):
At no time was John [the applicant] ever an owner of the business, ownership has always been solely mine.
In my view, there is a clear tension between, on the one hand, the plaintiff's discovery and his taxation returns and, on the other, the witness statement of Mrs Julie Goldie. This tension in my view has an apparent relevance to the credit of a person likely to be an important witness in the trial of the action, the plaintiff, and to the credit of another potential witness, Mrs Julie Goldie.
However, at the initial hearing on this present application, the respondents relied for legitimate forensic purpose on the potential relevance of the documents sought by the subpoenas not to the credit of those potential witnesses but to an issue defined by the pleadings.
At that hearing, the respondents drew my attention to what they contended were the relevant portions of the pleadings in the action. They are from the counterclaim [28] ‑ [32]. The effect of those paragraphs and the responses to them in the plaintiff's amended further amended reply to defence and defence to counterclaim dated 26 June 2009 (the reply and defence to the counterclaim) I take to be as follows.
The counterclaim pleads that, 'by an oral agreement evidenced in writing' between the second defendant and the plaintiff, the former agreed to advance to the latter a stipulated sum; and the particulars to this pleading refer to a written agreement dated 21 January 2003: [28]. The plaintiff admits this pleading.
The counterclaim further pleads that there were 'express terms in the agreement, in effect', that among other things the advance was repayable upon the earlier of 'the sale by the [plaintiff] of his interest in the business known as 'Cartridge World Cottesloe or … 31 December 2007': [29.3.1] and [29.3.2]. The plaintiff denies this pleading and says that the 'loan amount' was repayable on the earlier of the 'sale of Cartridge world Cottesloe' or the 'retirement of John Goldie from the work force': [13] of the reply and defence to the counterclaim, to which I return at the end of these reasons.
The counterclaim further pleads that it was an implied term of the agreement that the loan was repayable upon the plaintiff 'disposing' of 'his interest' in the business 'other than by way of sale' and 'Particulars of Implication' are provided: [30]. The particulars at [30] are: 'Particulars of Implication' (a), that the term is to be implied as it is reasonable, necessary to give business efficacy to the agreement, so obvious it went without saying, capable of clear expression and consistent with the agreement's express terms. Alternatively, in [30], 'Particulars of Implication' (b), the particulars are that the term is to be implied by reason of the term in [29.3.1], as to the sale of the plaintiff's interest in the business. It is not in contest the first set of particulars, comprising the five items referred to, follow the requirements for implication of a term to give business efficacy to a contract as described in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, 347 (Mason J) and 404 (Brennan J), quoting from BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283.
The plaintiff denies the pleading in the counterclaim [30].
The counterclaim further pleads that on a date unknown to the second defendant falling between 30 June 2003 and 30 June 2004 the plaintiff 'sold alternatively disposed of his interest in the business': [32]. The plaintiff denies this pleading and says the sale of Cartridge World, Cottesloe has not occurred and the plaintiff has not retired from the workforce.
What the subpoenas sought has apparent clear relevance to the issue in the action of what interest, if any, in the business the applicant had and what became of it. This is based on the applicant's discovery, his taxation returns, Mrs Julie Goldie's witness statement and those pleadings, leaving aside the matter as to the credit of the plaintiff and Mrs Julie Goldie. I would conclude that this would, subject to what follows, be sufficient to establish a legitimate forensic purpose for the issue of the subpoenas: Stanley [9] at (1). At the end of these reasons I return to the matter of credit I have left aside.
However, the applicant contended this would not apply to the Ink Mark subpoena, at 1, without its confinement to the sale to and purchase by one or other of the applicant or Mrs Julie Goldie. I do not consider I need to go further into this matter, as the respondents responded and the applicant appeared to accept that at the least the subpoena should be amended so as to so confine 1.
The applicant further put to me that a legitimate purpose was not shown at least once account was taken of the vulnerability of the pleadings in the counterclaim [30], with a consequential vulnerability of the reference to a disposal otherwise than by sale in [32]. This was their vulnerability to strike out, even if they had not been struck out.
I reach below the applicant's contention that those pleadings should be struck out. However, absent a striking out, it seems to me that the pleadings stand so as to assist in framing the issues in the action. Counsel for the applicant was not able to cite to me any authority in support of her submission that a vulnerability was sufficient.
However, I accept that if matters of fact apparently in issue on the pleadings or otherwise are in fact no longer in issue, then no legitimate forensic purpose could be referred to those matters of fact. Here counsel for the applicant said, as I understood her, that it was of no significance whether or not the applicant had an interest in the business as the applicant's pleading was directed to whether or not the business had been sold. However, in my view the applicant's pleading leaves open the possibility, which Mrs Julie Goldie's witness statement speaks to and which counsel for the applicant appeared to me to accept, that the applicant might contend at trial he had never had any interest in the business at any material time. That is, in my view the matters of the applicant's interest in the business and what if anything became of it and when are, at this point, clearly potential issues in the trial, although this is a matter to which, in view of evidence of an occurrence after the initial hearing of the present application, I need to return. That occurrence was the sale of the business. I return to that evidence below where I further consider the matter of the relevance of the documents sought by the subpoenas to the credit of the plaintiff and Mrs Julie Goldie.
That conclusion as to what constitutes a possible issue in the trial disposes of the applicant's contention that the subpoenas should be set aside as a fishing expedition. This contention could, it seems, be approached either as one of lack of legitimate forensic purpose (see Stanley [9] at (4)), or as one of abuse of process, which would also justify setting the subpoenas aside: see Hunt v Russell (1995) 63 SASR 402, 407 (Perry J). Approached in either way, in my view my conclusion indicates that the subpoenas, at least as amended as I have indicated, go to documents which have an apparent legitimate forensic purpose, and for which it is 'on the cards' that those documents would 'materially assist the party seeking them to appraise the strengths and weaknesses of its case' (Hunt (409)).
The applicant further contended, as I understood his counsel's submissions, that even on my conclusion as to what constitutes an issue in the trial the scope of particular items in the subpoenas went beyond any apparent legitimate forensic purpose.
Counsel's contention as to the Ink Mark subpoena at 1 I have already dealt with. Counsel's contention as to the Ink Mark subpoena at 2 was, as I understood her, that matters not related to the sale and purchase of, or of any interest in, the business might be the subject of the communication there referred to.
However, in my view 'no narrow view' of potential relevance should be taken of the matter of the communications from the applicant or Mrs Julie Goldie in respect of the business: cf Stanley [9] at (3). Communications from the applicant or Mrs Julie Goldie with Ink Mark in respect of the business on their face not referring to a sale or purchase of, or of an interest in, the business might, it seems to me, be expected to reflect an understanding of those matters. Thus, I would not accept counsel's contention as to the Ink Mark subpoena 2.
Counsel's contentions as to the subpoena to Mrs Julie Goldie were confined to 1 and 2, as I understood those contentions. Those contentions, as I understood them, were that 1 was not confined to the matter of who purchased the business at any time material to the pleadings, while 2 was not confined to an interest or claim as at a time material to the pleadings.
However, in my view, 'no narrow view' of potential relevance should be taken of the matter of documents answering the descriptions in 1 and 2. As to 1, documents from Mrs Julie Goldie relating to the purchase of the business at any time which did not on their face concern its purchase by her or by the applicant might be expected to indicate the interest or otherwise of one or other of them in such a purchase, while such an interest might be expected to relate to the purchase one or other of them ultimately made that is indicated by the discovery from the applicant and the witness statement of Mrs Julie Goldie. As to 2, taxation returns and financial returns from Mrs Julie Goldie recording any financial interest or claim she had in relation to the business might be expected to show the presence or absence of an interest or claim of the sort to which her witness statement refers. Thus, I would not accept counsel's contentions as to the subpoena to Mrs Julie Goldie at 1 and 2.
The applicant further contended, as I understood his counsel's submissions, that even on my conclusion as to what constitutes an issue in the trial, a legitimate forensic purpose could not be shown where the subpoenas were shown to be for a purpose that could be addressed by other processes, principally third party pre-trial discovery (see O 26A). Interrogatories were also referred to; however, it was not in contest that these would have no role to play where the concern was for documents in the hands of third parties. As to discovery, this matter is dealt with in the authorities in relation to abuse of process, and I return to it in that context below.
Finally in relation to the matter of legitimate forensic purpose, I note the applicant's focus on the respondents' justification for the subpoenas in terms of the tension between the taxation returns of the applicant and the witness statement of Mrs Julie Goldie in relation to the claims for trading losses from the business in the former. For the applicant it was put to me that this justification amounted to an allegation of dishonest or improper conduct in the making of such claims. It was contended that the subpoenas could not be justified by reference to any such allegation absent a specific pleading of that allegation. Reference was made to Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255, where the court held that the refusal of an arbitrator to prevent evidence being led in support of an unpleaded allegation of improper conduct by an architect meant that the arbitrator should be removed from the arbitration. There was reliance on the 'rule' that allegations of dishonesty should be pleaded clearly and with particularity: see [35] (Ipp J), [93] (Wallwork J) and [135] (Anderson J).
However, in my view the 'rule' has no application in the regard contended for. There is no allegation of dishonesty or impropriety upon which the defendants presently intend to place reliance in the proceedings on the counterclaim. Indeed, the outcome of the production of the documents on the subpoenas may be to show that no question of dishonesty or impropriety arises in relation to the claims in the taxation returns. Further, there is no element of the cause of action in the counterclaim of which any allegation of dishonesty or impropriety would be a part: contrast the claim in the arbitration in Oldfield Knott Architects.
I consider then that a legitimate forensic purpose for the subpoenas has been made out, subject to the amendment of the Ink Mark subpoena at 1 to which I earlier referred, and to my return to the matter below.
I turn now to the other basis on which counsel for the applicant contended the subpoenas should be set aside. That basis is that they should be seen to be an unwarranted inconvenience to strangers to the action.

The subpoenas as an unwarranted inconvenience to strangers to the litigation

I consider the contention must be taken to rest on the power of the Court to set aside subpoenas shown to be an abuse of its process: see Albany Port Authority [20] ‑ [21] (Steytler P) and [65] (Pullin JA); Civil Procedure in Western Australia [36B.0.26]; and Trade Practices Commissioner v Kimberley Homes Pty Ltd (1989) 217 ALR 110, 113 (Hill J).
The authorities show that the fact compliance with subpoenas would be burdensome for a stranger to the litigation is not sufficient to show abuse of process. Rather, it is a burden so unreasonable as to show oppression which is required: see Kimberley Homes (114 ‑ 115).
In determining whether a case to set aside a subpoena on the basis it would impose an unreasonable burden in that sense has been shown, the court should consider in particular the breadth of the terms of the subpoenas and whether or not the issues to which they relate are 'peripheral to the decisive issues in the litigation': see Tobin v Ezekiel [2008] NSWSC 1108 [39] (Palmer J).
As to the latter matter, I note my discussion of legitimate forensic purpose, above. At this point in the proceedings, I do not consider it is possible to conclude that the issues I identified in that discussion, of the interest if any of the applicant in the business and what happened to it, have been shown to be peripheral to the decisive issues in the litigation. I do not consider I should alter this view because of the evidence of this sale of the business after the initial hearing of the present application. I consider that evidence below.
As to the breadth of the subpoenas, I consider that on the authorities two matters are to be distinguished. One is the burden cast on the person to whom the subpoenas are addressed to identify the documents sought, particularly where a burden in the nature of discovery of documents is involved. Indeed, the imposition of that burden may be a distinct form of abuse of process, separate from the imposition of an unreasonable burden. The other matter is the burden of collection, collation and production of the documents identified.
As to the burden of identification, I consider there was no contest that I should approach the matter in terms of the following, from Secretary, Department of Immigration & Multicultural & Indigenous Affairs v Behrooz [2002] SASC 370 [75] ‑ [77] (Gray J), where his Honour referred to the leading authorities of Commissioner of Railways v Small (1938) 38 SR (NSW) 564, 573 (Jordan CJ), Lucas Industries Ltd v Hewitt (1978) 45 FLR 174, 178 (Smithers J) and Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710, 719 ‑ 720 (Clark J):
There are a number of grounds on which a witness summons can be set aside. Deciding whether a summons is oppressive or tantamount to discovery inevitably involves some overlap. In ... Small Jordon CJ observed:
'A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to the trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of this papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant.'
In Lucas Industries ... [178] Smithers J said:
'It is, however, of the essence of an obligation to make discovery that a duty rests upon the party subject thereto to decide for himself with respect to documents in his possession whether, in the relevant sense, they relate to the issues in the action. The subpoena does not in terms seek to impose this task on the respondents. It seeks production of documents the contents of which relate to specified subjects. The respondents do not have to direct their minds to the issues. But it is said that the specified subjects are numerous and are so comprehensive that the task of examining documents to test the relationship of their contents to those subjects does not, in the circumstances of this case, differ in nature from that involved in making discovery.'
In Southern Pacific Hotel Services ... [719 - 720] Clark J observed:
'.. there is no doubt that a subpoena, particularly one addressed to a stranger, must be couched in terms of reasonable particularity. It may call for the production of such a large number of documents of doubtful possible relevance that it should be regarded as oppressive and an abuse of process: see the example given by Moffit P in Waind (at 382). If a court is called upon to rule that a subpoena is an abuse of process in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld.'
A witness summons cannot be characterised as seeking discovery on the basis that the documents sought are not precisely described or are not necessarily capable of identification. A summons does not assume the characteristics of discovery because it requires a recipient to judge whether the documents sought relate or refer to a specified subject matter. The number of documents required and the burden of collating them does not necessarily render the summons oppressive. The public interest in the administration of justice may overwhelm these private concerns.
When a witness summons extends to documents that only marginally relate to the litigation then the court must weigh the competing considerations. The burden to the recipient of compliance and the invasion of private rights must be balanced with the public interest in the administration of justice.

I have previously noted the contention of counsel for the applicant that the subpoenas should be set aside on the basis that they are for the purpose of obtaining discovery from third parties, which I took to include a contention that they impose a burden in the nature of discovery.
However, I do not accept that contention. The subjects specified in the subpoenas, whether or not amended as to the Ink Mark subpoena as I have indicated, do not require Ink Mark or Mrs Julie Goldie to identify the issues in the litigation, and so do not 'call for the exercise of a judgment of the nature imposed on a party giving discovery': Southern Pacific HotelServices (718). Nor are the subjects so 'comprehensive' that the 'task of examining the documents to test the relationship of their contents to those subjects does not ... differ in nature from that involved in giving discovery': Lucas (178).
At the same time I accept, on Behrooz and the authorities cited there, that a subpoena not imposing a burden of identification in the nature of discovery might yet impose an unreasonable burden where its terms are vague and uncertain. In this regard I note the emphasis laid by counsel for the applicant on the generality of the terms of the subpoenas, and the test in Tajik Aluminium Plant v Hydro Aluminium AS [2006] 1 WLR 767, [25] (Moore‑Bick LJ, with whom Maurice Kay and Rix LJJ agreed). That test as described in [25] is as follows:
In those circumstances I think it is appropriate, in the absence of any explicit guidance in the rules as to the manner in which documents are to be described in a witness summons, to have regard to the earlier authorities relating to the writ of subpoena duces tecum since they may provide some insights into the factors that the court needs to keep in mind when exercising a jurisdiction of this kind. Miss Reffin did not challenge the conclusion drawn by Gross J. in Council of the Borough of South Tyneside v Wickes Building Supplies Ltd [[2004] EWHC 2428] that those authorities support the conclusion that the documents to be produced had to be specifically identified, or at least described in some compendious manner that enabled the individual documents falling within the scope of the subpoena to be clearly identified. In my view the judge was correct in reaching that conclusion.
However, I consider that the scope of the subpoena as to Mrs Julie Goldie at 3 would fall within the description of documents 'specifically identified', and I did not understand counsel for the applicant to contend otherwise.
As to the remaining classes of documents in the subpoenas, they are in my view described in 'a compendious manner that enabled the individual documents falling within the scope of the subpoena to be clearly identified'. I note that account must be taken both of the terms of each subpoena and the identity of the person to whom the subpoena is addressed and their connection to the litigation: see Southern Pacific Hotel Services (720). However, the terms of the subpoenas do not, even after such account is taken of those identities and connections, particularly those of Ink Mark, in my view have the vagueness or uncertainty of the terms of the witness summonses the setting aside of which was not disturbed in Tajik Aluminium Plant. Those terms were as follows ([9], emphases supplied):
The schedule to each of the summonses requiring the production of documents was in the same terms and read as follows:
'1) Any documents relating to supplies of alumina, directly or indirectly, to the Claimant by Hydro Aluminium AS ("Hydro").
2) Any documents relating to supplies of aluminium, directly or indirectly, by the Claimant to Hydro.
3) Any documents passing between Ermatov and/or Shushko and/or Nazarov and/or Ashton and/or Ansol Ltd ("Ansol") and/or Hydro relating to the operation or performance of:
a) A Barter Agreement between the Claimant and Hydro dated 21 July 2000; or
b) An Aluminium Agreement between Ansol and Hydro dated 21 July 2000; or
c) A Barter Agreement between the Claimant and Hydro dated 25 September 2003; or
d) An Aluminium Agreement between Ansol and Hydro dated 25 September 2003.
4) Any documents passing between Ermatov and/or Shushko and/or Nazarov and/or Ashton and/or Ansol and/or Hydro relating to Hydro's state of knowledge as to the pricing of alumina supplied to the Claimant and/or the arrangements by which alumina was supplied to the Claimant.'
In any event, I consider the terms of the subpoenas are comparable to those of the subpoenas in Joye, which were found not to be 'too wide': see [27] (Foster AJ), in which those terms appear as follows:
1.All records, however compiled, recorded or stored recording or relating to:
(a)the purchase, sale, transfer or holding of shares in Asian Properties Ltd (formerly Coronet Far East Ltd) ('the Company') by, to or from Bowyang Nominees Pty Ltd;
(b)the identity of the parties on whose behalf Bowyang Nominees Pty Ltd purchased, sold, transferred or held shares in the Company and the size of their respective shareholdings in the Company
during the period June 1983 to September 1997.
2.All communications (including but not limited to instructions or directions from or to Ian Edward Joye or Robert Eric Horsell or anyone on their behalf) relating to the purchases, sales, transfers or holdings referred to in para 1 above.
3.All documents or communications between Bowyang Nominees Pty Ltd and any other person relating to the submission or proposed submission by Bowyang Nominees Pty Ltd and/or Ian Edward Joye of any notice under New Zealand company legislation disclosing that Bowyang Nominees Pty Ltd or Ian Edward Joye held a relevant interest in shares in the Company for the period June 1983 to September 1997.
As to the burden of collection, collation and production imposed by the subpoenas, I note the reference in Southern Pacific Hotel Services (720), quoted in Behrooz [75], to the interest that all material relevant to the issues be available to the parties to enable them to advance their respective cases as 'predominant', although 'in every case' a balancing process must be undertaken in which the interests of the stranger to whom a subpoena is addressed are weighed. Indeed where the documents are only 'marginally' related to the issues in the litigation the interests of the third party may assume particular significance: see Behrooz [77]. Where the 'needs of justice require or could require' that a 'stranger carry out a very burdensome task in the collection, transportation and production of a large number of documents' then the subpoena will be upheld: Southern Pacific Hotel Services (720).
On the basis of my discussion of legitimate forensic purpose above, I consider that the documents sought by the subpoenas in this case have not been shown to be only 'marginally' related to the issues in the litigation. In assessing whether the interest in obtaining those documents outweighs the interests of those to whom the subpoenas are addressed, I note that neither Ink Mark nor Mrs Julie Goldie has indicated a concern about the subpoenas imposing a burden of the present kind. I note in this regard the observation in Kimberley Homes (115) that where the burdensome nature of the subpoena is not relied on by the person to whom it is addressed, and the documents are relevant to an issue between the parties, it would be 'a rare case indeed in which the subpoena would be set aside as oppressive, and so an abuse of process'.
Accordingly I consider the subpoenas as amended are not unreasonably burdensome and so should not be set aside as an abuse of process on such a basis.
Finally in respect of the issue of abuse of process, I note the contention of counsel for the applicant that the subpoenas, particularly 3 in the subpoena addressed to Mrs Julie Goldie, might readily be seen to call for the disclosure of confidential material.
However, while I accept that disclosure of confidential material might be seen to be called for by the subpoenas, I note that I have no evidence of any concern in that regard of either Ink Mark or Mrs Julie Goldie.
In any event, it seems to me on the authorities that matters having to do with confidentiality are generally not to be assessed at this stage, as explained in Behrooz [79]:
Confidentiality is not a factor militating against the need for compliance with a witness summons. Summonses frequently call for the production of confidential material. It is only upon production that the court must determine the basis of any claims to confidentiality and whether protective orders are warranted. Objections on the ground of public interest immunity must also be made to the court at the time of the return of the summons. This is not a basis for refusing to comply. Public interest immunity is not an automatic privilege. In criminal cases the court will need to carefully weigh the State's interest with the interests of the individual. This is not a task that can be performed in the abstract.
In Santos Ltd v Pipelines Authority [[1996] SASC 5578; (1995-96) 66 SASR 38 at 56-57] Debelle J observed:
'The fact that documents are confidential or commercially sensitive does not, standing alone, mean that a subpoena is oppressive. Subpoenas not infrequently require production of confidential documents, albeit less frequently, of commercially sensitive documents. The risk to the confidentiality of the documents must be tolerated in the interests of the administration of justice ... The return of the subpoena is the appropriate time to determine claims for confidentiality and make orders to protect confidential documents ... The arbitrators can make appropriate orders to protect confidentiality. On production of the documents to them, the arbitrators can determine whether the documents are confidential, whether they should be disclosed and, if so, the terms in which they will be disclosed including requiring undertakings as to confidentiality from those inspecting the documents.'
I note that there is authority that indicates that an objection to production by the addressee on confidentiality grounds might help to show that the subpoena should be set aside as an abuse: see Morgan v Morgan [1977] 2 All ER 515, 518 (Watkins J), referred to in Civil Procedure in Western Australia [36B.0.30]. However, as I have indicated there is no such objection in this case.
I conclude that the applicant has not shown me that the subpoenas, amended as to the Ink Mark subpoena at 1, should be set aside as an abuse of process.
I turn now to the applicant's claim that part of the counterclaim should be struck out.

The strike out claim

The applicant's chamber summons did not contain an application to strike out any portion of the respondent's pleadings. However, the applicant's minute of proposed orders on chamber summons dated 29 January 2010 included a proposed order that [30] of the counterclaim be struck out 'as it may prejudice, embarrass or delay the fair trial of the action'. As I have indicated, that paragraph relates to the disposal of the pleaded interest of the plaintiff in the business by means other than a sale.
I consider the proposed strike out order is not readily accommodated within the chamber summons. I further consider that in any event its subject-matter is such that it called for separate conferral within O 59 r9. No conferral on the proposed strike out order in fact took place.
However, full argument took place on the proposed strike out order and I consider I must deal with the matter.
Considered as an application for a strike out order, the application is of course well out of time: see O 20 r 19(3)(a) (within 21 days of the service of the pleading). The applicant required an extension of time to make any such application, which would be justified if the interests of justice required it: Civil Procedure in Western Australia [20.19.2] (citing authority). Counsel for the applicant, as I understood her, put the case for such an extension on the basis that it was clear the construction of the loan agreement which should be seen as put forward by [30] had to fail.
The principal basis on which that construction had to fail was that the implied term was inconsistent with the express terms as to repayment in the loan agreement.
I have already noted that [30] 'Particulars of Implication' (a) set out the five elements for the implication of a term to give business efficacy to a contract, from BP Refinery (Westernport) quoted in Codelfa (347). The fifth of the five elements is that a term will not be so implied if it would 'contradict any express term of the contract'. While [30] 'Particulars of Implication' (b) does not rest on those elements, I consider that an implication, in terms of the 'Particulars of Implication' (b), 'by reason of the term pleaded in paragraph 29.3.1 hereof', would not be possible if it were contradicted by the term to which that paragraph refers, as was the contention for the applicant.
The inconsistency relied upon for the applicant was said to lie in the fact the loan agreement, as evidenced by the writing appearing as an annexure to the affidavit of the applicant of 2 February 2010, referred to repayment (cl 4, emphasis supplied)
on the earlier to occur of the following:
aThe sale of business interest in Cartridge World Cottesloe
bThe retirement of John Goldie from the work force.
It was not in contest that that was the term to which the counterclaim [29.3.1] referred.
The case for the applicant, as I understood it, was the inconsistency was sufficiently clear that it would result in prejudice to the plaintiff or the effective utilisation of the resources of the parties and of the court to permit [30] to remain.
I note first that the striking out of [30] would not appear to remove but at most to qualify, in a way that does not appear to me to be material, the basis in the defendants' pleadings for the legitimate forensic purpose which I previously identified. That purpose rests as well on [29], having to do with the sale of the plaintiff's interest. Counsel for the applicant appeared not to seek the striking out of that paragraph, which in any event is not mentioned in the minute of proposed orders of 29 January 2010.
I consider that any inconsistency has not been shown to be as clear as the applicant contended. There are authorities that indicate that the fact the contract provides for matters in relation to the term sought to be implied may not prevent implication of the term: see Seddon NC and Ellinghaus MP, Cheshire & Fifoot's Law of Contract (9th Aust ed, 2008) LexisNexis Butterworths [10.060]. The respondents indicated they would at the appropriate time seek to rely on the full terms of the loan agreement, including its Recital A that 'John Goldie wishes to borrow from the Trustee, under the terms of this agreement, to finance certain financial obligations in relation to his business activity'. On the authorities referred to it has not been shown to me that any such reliance is clearly likely to be unavailing.
For the applicant, it was also put to me that the other four of the five elements from Codelfa (347) (Mason J) for terms implied to ensure business efficacy were also so clearly not met that it would result in prejudice to the applicant or the efficient utilisation of resources of the parties and of the court to permit [30] to remain.
The response of the respondents appeared to be the same as for the element of consistency, in terms of their reliance on the full terms of the loan agreement, including Recital A. I have noted the discussion of the authorities on each of the four elements in Cheshire & Fifoot's Law of Contract [10.56] ‑ [10.59]. It seems to me, in the light of that discussion and in view of the terms of the loan agreement evidenced by the written agreement, particularly Recital A, that in respect of the first, second and third elements such reliance has not been shown to be clearly likely to be unavailing. Further, as to the fourth element, that the implied term is capable of clear expression, the form of the implied term contended for has not been shown to be incapable of such expression.
Finally, I note that counsel for the applicant put to me that in any event the pleading of the five elements from Codelfa (346) in [30] was devoid of sufficient particularity and [30] should be struck out. Counsel's submission appeared to be that the pleader ought at least to have spelt out those parts of the loan agreement to be relied upon (including, I would presume, Recital A on which the respondents intend to place reliance).
However, I do not consider that the pleading in [30] lacks sufficient particularity. In my view it should be understood to refer to the terms of the loan agreement as evidenced in writing, and that is sufficient.
True it is the pleading of the loan agreement, in the counterclaim [28], is of an 'oral agreement evidenced in writing' which was made in or about December 2001 and 'Particulars of Written Agreement' for this pleading refers to '[t]he written agreement dated 21 January 2003'. It appeared to be common ground that a copy of that writing was that annexed to the plaintiff's affidavit of 2 February 2010. However, it was not contended for the respondents that the pleading of the implied term in [30] should be understood as referring for satisfaction of its particulars to matters other than the terms in that writing, and counsel for the applicant did not indicate she had any other understanding. Counsel for the respondents directed me to the particulars in [30] 'Particulars of Implication' (b), apparently as confirming this. It seems to me that if the implication had depended on matters of fact extrinsic to the writing, the pleading would have been defective in the absence of particulars of those matters of fact: see Burton v Karbowsky (1914) 14 SR (NSW) 373, 377, and the reference to Burton in Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32, 36 (Kelly J). But the implication in this case does not so depend.
I consider then that an extension of time to set aside [30] in the counterclaim should not be allowed.

Leave to re‑open the case

Following my reservation of judgment at the conclusion of the hearing on 3 February 2010, the applicant sought to put before me evidence (the evidence) that after that hearing the business had been sold. Counsel for the applicant submitted that this had the effect that the loan amount was repayable, on the applicant's own pleading. I took this as a reference to the reply and defence to counterclaim [13], quoted in material part earlier. Accordingly, as I understood counsel's submission, the only possible or significant legitimate purpose now served by the subpoenas was as to credit, and on the basis of that as the only possible or significant legitimate purpose the subpoenas were an abuse of process.
I called a further hearing on 16 March 2010 to consider whether to permit the parties to put submissions on these matters. At the hearing I granted leave to re‑open and permitted them to put submissions.
I consider that leave to re‑open should be granted on the basis that the evidence might be seen as going at least to whether or not matters of fact apparently in issue on the pleadings or otherwise were in fact no longer in issue. I have previously referred to this consideration in relation to the issue of legitimate forensic purpose.
However, for the reasons that follow, I am of the view that the evidence does not significantly affect my conclusions above in relation to the application to set aside the subpoenas. The following are my reasons for arriving at that view.
I accept for the purpose of the argument on the re‑opening, but without arriving at a final determination of the point, that on the evidence the loan amount became repayable no later than the date of settlement of the sale of the business, and that the evidence satisfies me that such settlement has now occurred. The evidence is the affidavit of Harriette Elke Benz sworn 15 March 2010 [4] and [5]. Ms Benz is the solicitor with the carriage of the matter for the plaintiff in the action. At the same time I accept that those paragraphs are not altogether clear on the matter of whether or not settlement has occurred.

I also accept, again without arriving at a final determination of the point, that the matter of when the loan amount became repayable, as between the date contended for by the respondents on their pleadings (between 30 June 2003 and 30 June 2004) and the settlement of the sale of the business, appears to have no bearing on the relief claimed by the respondents in the counterclaim. That relief is the loan amount, together with interest since the date up to which it is pleaded, in the counterclaim [34], that interest was paid, 8 September 2008, or interest pursuant to Supreme Court Act 1935 (WA) s 29. The reply and defence to the counterclaim includes both a denial that the defendants are entitled to any relief, and at [18] the plea that interest was paid to 15 November 2008.
However, as counsel for the respondents pointed out, the applicant did not accept that the loan amount became repayable as is pleaded in the counterclaim. Nor had he accepted that the loan amount had become repayable at all, until the sale referred to in the evidence. Further, there has been no consent to judgment on the counterclaim. At the very least, it seems to me that the matter of whether or not the loan amount became repayable as pleaded in the counterclaim remains relevant to, if not necessarily decisive of, the costs of the counterclaim. This in my view makes for a significant legitimate forensic purpose the subpoenas may be seen to serve.
Further, the documents sought by the subpoenas have, as I have indicated, an apparent relevance to the credit of a person likely to be an important witness in the proceedings, the plaintiff. That relevance is on the basis of the tension previously described between, on the one hand, the discovery he had provided and his taxation returns, and, on the other hand, the witness statement of Mrs Julie Goldie. The documents sought by the subpoenas also have, on this same basis as I have indicated, an apparent relevance to the credit of another potential witness in the proceedings, Mrs Julie Goldie.
Both counsel accepted, as accurately stating the law with respect to subpoenas seeking documents apparently relevant to credit, the following, from Jack Brabham Engines Ltd v Bease [2010] FCA 35 [23] (Jagot J referring to Brand v Digi‑Tech (Australia) Pty Ltd [2001] NSWSC 425 and Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194):
Moreover, a subpoena can be issued to a third party to obtain documents relevant only to a witness's credit if the credit of that witness is in issue in the proceedings. However, given the limits on evidence relevant only to credit, courts scrutinise such a subpoena carefully to ensure that there is no abuse of process. At one end of the scale, courts ask whether the documents sought are manifestly irrelevant and incapable on [of?] touching matters of credit (see Hunter J in Brand at [36]). At the other end of the scale, courts ask whether the documents have a purpose which can be described as 'identifiable and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness' (see [29] of Fried).
Here, I leave aside any question of any other apparent relevance than in relation to the issue of credit I have identified. I here scrutinise the subpoenas carefully to ensure there is no abuse of process.
Having so scrutinised them, I have concluded that there is no question but that the documents sought are relevant as clearly touching on an issue as to the credit of a likely important witness in the proceedings, the plaintiff, as well as another potential witness, Mrs Julie Goldie. Further, that purpose for seeking the documents is of its nature clearly identifiable and likely to facilitate the conduct of the proceeding and not merely to oppress either witness.
It follows I do not consider the evidence has a significant effect on my conclusions that the subpoenas should not be set aside on the basis either that they lack a legitimate forensic purpose or are an abuse of process.
I should add that I do not see how the evidence has a significant bearing on the disposition of the application to strike out the pleading in the counterclaim [30], on which no argument was pressed on me in any event.

Conclusion

In my view, it has not been shown I should set aside the subpoenas or allow an extension of time to set aside [30] in the counterclaim. However, the subpoena addressed to Ink Mark should be amended as I have described.
I will hear from the parties as to the orders to be made following from these reasons.