Harvard Nominees Pty Ltd v Tiller

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FEDERAL COURT OF AUSTRALIA

Harvard Nominees Pty Ltd v Tiller [2019] FCA 1672

File number: WAD 250 of 2019
Judge: JACKSON J
Date of judgment: 10 October 2019
Catchwords: PRACTICE AND PROCEDURE - application by respondents to set aside subpoenas under r 24.15 of Federal Court Rules 2011 (Cth) - whether subpoenas have a legitimate forensic purpose - whether scope of subpoenas too wide - application successful in part
Legislation: Federal Court Rules 2011 (Cth) r 24.15
Cases cited:

Alister v The Queen (1984) 154 CLR 404

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350

Bailey v Beagle ManagementPty Ltd [2001] FCA 60; (2001) 105 FCR 136

Central Innovation Pty Ltd v Garner [2019] FCA 461

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Lowery v Insurance Australia Ltd [2015] NSWCA 303; (2015) 90 NSWLR 320

Marshall v Smith [2013] WASC 432

Ran v The Queen (1996) 16 WAR 447

Seven Network Ltd v News Ltd (No 5) [2005] FCA 510; (2005) 216 ALR 147

Sklavos v Australasian College of Dermatologists [2014] FCA 476
Date of hearing: 9 October 2019
Registry: Western Australia
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 78
Counsel for the Applicant: Mr AW Buchan
Solicitor for the Applicant: Hotchkin Hanly Lawyers
Counsel for the Respondents: Mr JT Schoombee with Mr R Greer
Solicitor for the Respondents: Lawton Gillon
Table of Corrections
17 October 2019 At [57] the date in the second last line '31 January 2018' has been amended to correctly state '31 January 2019'.

ORDERS

WAD 250 of 2019
BETWEEN:

HARVARD NOMINEES PTY LTD (ACN 008 761 037)

Applicant
AND:

SIMON CLIFFORD TILLER

First Respondent

DIMENSION AGRICULTURE PTY LTD

Second Respondent

GIOVANNI BASILIO NICOLETTI

Third Respondent

DAMIAN GLEN BRYCE
Fourth Respondent

FELICITY HELEN TILLER
Fifth Respondent

JUDGE:

JACKSON J

DATE OF ORDER:

10 OCTOBER 2019

THE COURT ORDERS THAT:

1.The applicant file and serve any minutes of proposed amended subpoenas by 4.00 pm on Friday 11 October 2019.

2.The interlocutory hearing is adjourned to 10.15 am on Thursday 17 October 2019.

3.The costs of the respondents' interlocutory application dated 1 October 2019 are reserved to the adjourned hearing.

4.Until further order, the parties may not inspect any documents that have been provided to the Court in response to any of the six subpoenas that are to be set aside.

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


REASONS FOR JUDGMENT

JACKSON J:

  1. These reasons concern an application by the respondents to set aside seven subpoenas to produce documents which the court issued on the application of the applicant, Harvard Nominees Pty Ltd (Harvard).

    Principles on application to set aside subpoenas

  2. Rule 24.15 of the Federal Court…

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Details
Case
[2019] FCA 1672
Decision Date

CaseChat Overview and Summary

In the Federal Court, Harvard Nominees Pty Ltd sought to enforce subpoenas against various parties in relation to their involvement with farming operations and financial arrangements. The respondents challenged the subpoenas, arguing that they were too wide and lacked a legitimate forensic purpose. The court was required to determine whether the subpoenas had a legitimate forensic purpose and whether their scope was acceptable. The court found that six of the seven subpoenas should be set aside because they were too wide or ambiguous, and the subpoena to the National Australia Bank (NAB) should be allowed to stand. The court found that the subpoenas had a legitimate forensic purpose unconnected with questions of credit, and that the limited scope permitted to parties seeking to attack credit in a manner collateral to the facts in issue was consistent with the law. The court ordered that the applicant file and serve any minutes of proposed amended subpoenas by a certain date and that the interlocutory hearing be adjourned to a later date. The costs of the respondents' interlocutory application were reserved to the adjourned hearing, and the parties were not permitted to inspect any documents that had been provided to the court in response to the subpoenas that were to be set aside.
The court found that the subject matter of the documents sought in the subpoenas could be grouped and summarised as follows. The subpoenas to Landmark Operations Ltd and the receivers sought materials in connection with the farming operations at the Farms, lending arrangements, security over any assets, and any transaction giving effect to any sale or agistment of any assets on the Farms. The court found that the issues of Mr Nicoletti's involvement with the Farms and the financial condition of the Tillers around the time of the alleged conversations on 31 January 2019 arose squarely on the pleadings. The court found that the subpoenas to the various parties were too wide or ambiguous, and that the subpoena to the NAB was acceptable. The court ordered that the applicant file and serve any minutes of proposed amended subpoenas by a certain date and that the interlocutory hearing be adjourned to a later date. The costs of the respondents' interlocutory application were reserved to the adjourned hearing, and the parties were not permitted to inspect any documents that had been provided to the court in response to the subpoenas that were to be set aside.

Orders

Orders of the court

1. The applicant file and serve any minutes of proposed amended subpoenas by 4.00 pm on Friday 11 October 2019.

2. The interlocutory hearing is adjourned to 10.15 am on Thursday 17 October 2019.

3. The costs of the respondents' interlocutory application dated 1 October 2019 are reserved to the adjourned hearing.

4. Until further order, the parties may not inspect any documents that have been provided to the Court in response to any of the six subpoenas that are to be set aside.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There was a suggestion in Harvard's written submissions that the subpoenaed material may go to the credibility of the evidence to be given by the key witnesses. I am inclined to take this as just one way of saying that the material was probative of facts in issue. But to the extent that it was a submission that the subpoenaed material could be used to impugn the credit of any witness, the respondents submitted that a subpoena should only be issued for such a purpose if the way in which the material will go to credit is very specifically identified. I accept that submission, which is consistent with the generally limited scope that the law permits to parties seeking to attack credit in a manner collateral to the facts in issue: see Ran v The Queen (1996) 16 WAR 447 at 453. However given that the subpoenas have a legitimate forensic purpose unconnected with questions of credit, it is not necessary to take the matter further.Conclusion Six of the seven challenged subpoenas should be set aside; the exception being the subpoena issued to NAB. That is because, in the places I have indicated, they are defined by reference to a range of entities which is too wide, and are not confined by reference to the affairs of the Farms, or if they are so confined, they are unacceptably ambiguous. Also, the subpoenas to Landmark and the receivers lack an end date in relation to the range of relevant material. Harvard should file minutes of amended subpoenas and the interlocutory application should be adjourned to a further hearing to determine whether those amended subpoenas should be issued. I will hear the parties as to the time frames for those steps. Obviously the time for compliance with the amended subpoenas will need to be different to the time for compliance of the existing ones. There may also be a need for consequential orders permitting parties who have already provided documents to the court to uplift those documents or, if they do not wish to do so, requiring them to confirm that they do not. The question of the costs of the interlocutory application should be reserved to the adjourned hearing.

Ratio Decidendi

Legal Principle Established

The subject matter of the documents sought in the subpoenas can be grouped and summarised as follows. After doing so I will state the conclusions I have reached about what legitimate forensic purpose, if any, the subpoenas serve. As will be seen, resolving the issues in relation to the first pair of subpoenas largely points to how the disputes about the others should be resolved.Landmark Operations Ltd and the receivers Landmark Operations Ltd is a provider of agricultural products, advice and finance. Two partners of Hall Chadwick were receivers over the assets of the partnership formed by Mr and Mrs Tiller, whom Landmark appointed in April 2019. The subpoena to Landmark seeks materials between or concerning any of Landmark, Mr Tiller, Mr Nicoletti, Mr Bryce or the defined Entities of Interest. The subject matter of the materials sought concerns the farming operations at the Farms after 1 October 2018, lending arrangements in connection with the Farms after that date, security over any assets of the Farms or any Entities of Interest after that date, the appointment of Hall Chadwick as receivers, and any transaction giving effect to any sale or agistment of any assets on the Farms to Mr Nicoletti or any Entity of Interest. The subpoena to the receivers overlaps with this, because it too seeks materials in connection with any transaction giving effect to the sale or agistment of assets on the Farms. But is not coextensive with it, because the receivers' subpoena also seeks materials in connection with Mr Tiller and any Entity of Interest in relation to the Farms after 1 November 2018. It appears to be common ground that the issue of Mr Nicoletti's involvement with the Farms arises on the pleadings. Although the parties may differ in the precise way in which they each describe that issue, counsel for the respondents disavowed any submission that the fact that Mr Nicoletti was involved in the Farms was irrelevant. The issue arises most obviously because Harvard pleads that as at 31 January 2019, Mr Nicoletti had and would continue to have an involvement in Dimension, and at the time it was intended that he would be involved in Dimension's activities on the Farms, and those pleas are denied. While the respondents say it is not a real issue, at least in relation to Mr Nicoletti's involvement with Dimension, in my view issues as to the fact, timing, nature and extent of Mr Nicoletti's involvement with both Dimension and the Farms arise squarely on the pleadings. I accept Harvard's submission that the financial condition of the Tillers around the time of the alleged conversations on 31 January 2019 is relevant. That is not because any representation about that financial condition was alleged to have been misleading, or to have been relied on. It is, rather, because if the Tillers are shown to have been in a difficult financial position as at the time of the alleged representations, that may increase the likelihood that they needed Mr Nicoletti to help them get out of that position, and therefore the likelihood that Mr Nicoletti had, and was intended to have, some involvement with Dimension and the Farms.