In the matter of Healthvue Pty Ltd

[2015] NSWSC 2058

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Healthvue Pty Ltd [2015] NSWSC 2058
Hearing dates:	4 May 2015
Date of orders:	04 May 2015
Decision date:	04 May 2015
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Notice of motion dismissed.
Catchwords:	PROCEDURE – subpoenae – application to set aside subpoena – whether subpoena unreasonably burdens receiving party or is relevantly oppressive – where subpoena calls for production of privileged documents – whether privilege waived – held, no grounds for setting aside of subpoena.
Legislation Cited:	(CTH) Corporations Act 2001, s 459G, s 459P, s 459S
Category:	Consequential orders (other than Costs)
Parties:	Calvary Health Care Sydney Limited ACN 105 757 453 (plaintiff) Healthvue Pty Ltd ACN 149 138 036 (defendant)
Representation:	Counsel: Mr A J Hyde (plaintiff) Mr Khoury (defendant)   Solicitors: Norton Rose Fulbright Australia (plaintiff) Benjamin & Khoury Solicitors and Attorneys (defendant)
File Number(s):	2015/58777

Judgment (ex tempore)

1. HIS HONOUR: On 25 February 2015, the plaintiff Calvary Health Care Sydney Ltd filed an application claiming an order pursuant to (CTH) Corporations Act 2001, s 459P, that the defendant Healthview Pty Ltd be wound up in insolvency. The defendant filed a notice of appearance on 26 March 2015 and, also on the same date, an interlocutory process claiming an order pursuant to Corporations Act, s 459S, granting leave to rely, in opposition to the winding up application, on the ground that the plaintiff's debt was genuinely disputed. It needed that leave in circumstances where it had previously filed an application to set aside the statutory demand but at the hearing did not appear nor proceed with that application.

2. The evidence establishes that Benjamin & Khoury Solicitors acted for the defendant (then as plaintiff) on that application, and appeared at the outset of the hearing, but informed the Court that they did not have instructions, and that thereafter the company was not represented at the s 459G hearing.

3. On 10 April 2015, the plaintiff issued a subpoena, which was served shortly thereafter, addressed to Benjamin & Khoury, for production of the following documents:

1.    All documents dated or created between 6 August 2014 and 17 February 2015 (inclusive) which comprise, record or evidence any communication between:

a.   on one part:

i.    Benjamin & Khoury Pty Ltd (or any of its directors or employees); or

ii.   The legal practice trading with the name Benjamin & Khoury Solicitors & Attorneys, (collectively, B&K); and

b.   on the other part:

i.    Healthvue Pty Ltd (Healthvue) (or any of its directors or employees); and/or

ii.   any representative of Healthvue including (but not limited to) Sid Chedid,

in relation to proceedings no. 2014/252069 commenced by Healthvue in the Supreme Court of New South Wales, including (but not limited to):

c.   the grounds available to Healthvue to apply to set aside the statutory demand issued to it:

i.   in the amount of $167,494.80 by Calvary Health Care Sydney Limited; and

ii.   in the amount of $311,069.00 by Calvary Health Care ACT Limited dated 6 August 2014; and/or

d.   the directions and/or orders made by the Court on 20 October 2014; and/or

e.   the matter being fixed for hearing on 3 February 2015; and/or

f.   the directions and/or orders made by the Court on 30 January 2015; and/or

g.   the appearance before the Court on 3 February 2015; and/or

h.   the steps to be undertaken by B&K and/or Healthvue to prepare the matter for hearing on 3 February 2015; and/or

i.   any failure by Healthvue Pty Ltd to pay any invoices; and/or

j.   any request from B&K for Healthvue to pay monies to it on trust and in advance of work being carried out; and/or

k.   relaying or reporting on communications between B&K and Norton Rose Fulbright Australia in the period 6 August 2014 and 17 February 2015.

In this subpoena “Document” includes:

A.   any paper or other material on which there is writing; and

B.   any paper or other material on which there are marks, figures, symbols or perforations having meaning for a person qualified to interpret them; and

C.   any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

Production of documents in electronic form is acceptable.

4. It will be observed that while the subpoena requires production at the outset of "all documents dated or created between 6 August 2014 and 17 February 2015", the class of documents production of which is required is then described by being limited to communications between Benjamin & Khoury on the one hand and Healthvue on the other in relation to the subject proceedings, and then by reference to a number of grounds or matters referred to in that correspondence, but without limitation. Essentially, therefore, the subpoena calls for all documents being or recording communications between Benjamin & Khoury and Healthvue during the relevant period in relation to the s 459G proceedings. The affidavits sworn in support of the s 459S application states:

In summary, the basis for that application will be that Healthvue's former solicitors failed to carry out instructions in seeking to set aside the statutory demand.

5. In my view, communications between Healthvue’s former solicitors and Healthvue in connection with the subject proceedings could well illuminate the issue as to whether, in truth, Healthvue's former solicitors failed to carry out instructions as alleged, or whether the true explanation for their not continuing to appear at the hearing is otherwise.

6. The evidence in support of the application to set aside contains little more than a bare assertion that the subpoena unreasonably burdens the subpoena recipient, and does not make out a case that it is oppressive in any relevant sense. It is true that the subpoena calls for what are prima facie privileged communications, but save where it is beyond argument that the documents are privileged and that privilege has not been waived, that is not of itself a ground to set aside a subpoena. There is at least a tenable argument that the nature of the ground advanced by Healthvue in support of the s 459S application amounts to a waiver.

7. The supporting affidavit also refers to a lien, but while in some circumstances a lien might be relevant where the subpoena is issued by the solicitors' former client, it is no answer to a subpoena issued by a party other than the solicitors' former client.

8. In my view, a basis for setting aside the subpoena has not been established. I order that the notice of motion filed 4 May 2015 be dismissed with costs.

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Decision last updated: 11 March 2016