Re Bradbury Industrial Services Pty Ltd
[2021] VSC 54
•18 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2020 01699
IN THE MATTER of BRADBURY INDUSTRIAL SERVICES PTY LTD
(in liquidation) (ACN 121 279 847)
BETWEEN:
| DAVID BARRY LOGISTICS PTY LTD (ACN 121 644 460) | Plaintiff |
| v | |
| GEOFFREY TRENT HANCOCK (in his capacity as liquidator of BRADBURY INDUSTRIAL SERVICES PTY LTD (in liquidation) (ACN 121 279 847) & ORS (according to the schedule) | Defendants |
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JUDGE: | M Osborne J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 January 2021 |
DATE OF JUDGMENT: | 18 February 2021 |
CASE MAY BE CITED AS: | Re Bradbury Industrial Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 54 |
PRACTICE AND PROCEDURE – Appeal pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 against order of Associate Judge permitting inspection of subpoenaed documents and refusing to set aside subpoenas – Whether plaintiff established legitimate forensic purpose – Whether legitimate forensic purpose not established because plaintiff’s claim defective and misconceived – Whether category by category analysis required when establishing legitimate forensic purpose – Absence of substantial injustice a relevant consideration – No error in reasons of Associate Judge – Legitimate forensic purpose assessed in reference to claim as articulated by the plaintiff – No substantial injustice in allowing orders of the Associate Judge to stand.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Maiden QC and Ms V Bell | Aitken Partners |
| For the Defendants | Mr P Hanks QC and Mr J Brereton | Victorian Government Solicitor |
HIS HONOUR:
Introduction
This is an appeal by the third defendant, the State of Victoria (‘the State’), pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) against orders of Efthim AsJ made 9 December 2020. The orders dismissed objections by the State to inspection by the plaintiff, David Barry Logistics Pty Ltd (‘DBL’), of documents produced pursuant to three subpoenas issued by DBL to Fire Rescue Victoria (‘FRV’),[1] the Victorian WorkCover Authority (‘the VWA’),[2] and the Environment Protection Authority Victoria (‘the EPA’), and related applications by the State to set aside the subpoenas.
[1]FRV is effectively the successor to the Metropolitan Fire Brigade and elements of the Country Fire Authority.
[2]The VWA is also referred to as ‘WorkSafe Victoria.’ ‘The VWA’ and ‘WorkSafe Victoria’ are used interchangeably throughout this judgment.
FRV produced documents without objection. Each of the VWA and the EPA lodged objections to the subpoenas served on them, but resolved those objections after DBL agreed to narrow the range of documents sought. Inspection has not yet occurred and awaits determination of the State’s appeal.
For the reasons set out below, the State’s appeal is dismissed.
Background to the proceeding
The first defendant, Bradbury Industrial Services Pty Ltd (‘Bradbury’), has disclaimed industrial waste stored at DBL’s premises. That waste is subject to a statutory clean-up notice that requires the waste to be disposed of at significant cost. DBL alleges that the industrial waste was stored at the premises as a result of a misdescription of it by Bradbury, which was required to dispose of the industrial waste following regulatory action by State agencies. DBL seeks to set aside the disclaimer and seeks a related order that Bradbury collect the industrial waste. Alternatively, DBL seeks a declaration that the industrial waste is bona vacantia or ought vest in the State pursuant to s 568F(1)(b) of the Corporations Act 2001 (Cth) (‘the CA’).
DBL operates a logistics business, offering transport, storage, distribution and administrative services. DBL’s expertise extends to the storage and distribution of hazardous products, for which it operates a purpose-built dangerous goods facility in Dandenong South, Victoria (‘the Dandenong warehouse’).
This proceeding concerns 1201 intermediate bulk containers (‘the IBCs’) which are presently in DBL’s possession. The IBCs were delivered to DBL by Bradbury, now in liquidation. Of the 1201 IBCs, 563 were delivered to the Dandenong warehouse in the period from 10 April 2018 to 28 June 2018 (‘the 2018 IBCs’), and a further 638 IBCs were delivered in the period between 5 March 2019 and 29 March 2019 (‘the 2019 IBCs’). The IBCs were stored at the Dandenong warehouse under a contract of storage between DBL and Bradbury. Accompanying each of the deliveries were safety data sheets and delivery dockets provided by Bradbury. Relevantly, in the case of the 2019 IBCs, the delivery dockets identified the goods as Class 3 flammable products, which are classified as dangerous goods under the relevant legislation.
On 12 April 2019 the EPA conducted a site inspection at the Dandenong warehouse. The EPA inspector informed DBL that the waste contained in the Bradbury IBCs was industrial waste rather than dangerous goods. The management regime for industrial waste is more onerous than that for dangerous goods. Importantly, DBL is licensed to store and handle dangerous goods but not industrial waste. For present purposes, it can be accepted that the relevant legislation placed the responsibility of appropriately categorising the goods on the first supplier, Bradbury, and that the recipient, DBL, was entitled to rely on Bradbury’s description and not to undertake its own assessment of the IBCs. As a consequence, for present purposes it can be accepted that the misdescription of the industrial waste in the 2019 IBCs as dangerous goods and not industrial waste was the fault of Bradbury, not DBL.
On or about 5 August 2019, DBL received a letter from the first defendant, Mr Geoffrey Hancock of PKF International Limited (‘the liquidator’) enclosing a notice of intention under s 443B(3) of the CA not to exercise any rights in relation to rental or lease agreements between Bradbury and DBL or in relation to any goods located at the Dandenong warehouse. Subsequently, on 10 December 2019 Mr Hancock gave notice under s 568A of the CA disclaiming any agreement between DBL and Bradbury in respect of the Dandenong warehouse. On March 2020, Mr Hancock further forwarded an ASIC Form 525 notice to DBL disclaiming any agreement in respect of the Dandenong warehouse and any goods subject to any agreement in respect of the Dandenong warehouse. The disclaimed property necessarily comprised the 2018 IBCs and the 2019 IBCs.
On 22 May 2020 the EPA issued a clean-up notice to DBL in relation to the 2019 IBCs. That clean-up notice was superseded by an amended clean-up notice issued on 25 August 2020 which related to both the 2019 IBCs and the 2018 IBCs. The clean-up notice directs that DBL effect disposal of the IBCs.
Disposal of the IBCs will be costly. DBL is a small proprietary company. It contends that if required to meet the cost of disposal, there is a real risk that it will become insolvent. DBL also contends that it is maintaining the IBCs at its premises, filling valuable storage space for which it is receiving no payment from Bradbury.
Structure of the proceeding
On 8 April 2020, DBL commenced this proceeding by way of originating process[3] supported by an initiating affidavit. The originating process was subsequently amended on 14 April 2020. In its amended form, the originating process provided for the following relief:
1.An order pursuant to s 568B(2)(a) of the Corporations Act 2001 (Cth) (Act) that the disclaimer of onerous property made by the first defendant on or about 24 March 2020 is set aside.
2.An order pursuant to s 568B(2)(b) of the Act that the second defendant (Bradbury) remove all intermediate bulk containers and their contents (Goods) owned by Bradbury and stored at DBL forthwith.
3.Alternatively to the orders in paragraphs 1 to 4 (sic), a declaration that the Goods are bona vacantia and vest in the third defendant (the State); alternatively an order under s 568F(1)(b) of the Act vesting the Goods in the State.
4.If an order is made as sought in para 3 above, an order that the State remove the Goods from the Premises forthwith.
[3]The Supreme Court (Corporations) Rules 2013 r 2.2(1)(a) provides that an application required or permitted to be made pursuant to the CA is to be commenced by filing an originating process. It is not uncommon in such actions for the court to later direct that a statement of claim be served or that the plaintiff’s claim be otherwise elucidated by the filing of documentation such as a statement of facts or contentions of law. Although the State complained at various stages during the earlier interlocutory stages about a lack of clarity in DBL’s claim, no order was sought for pleadings or the filing of a statement of facts or contentions of law.
DBL seeks relief setting aside the disclaimer made by Bradbury, and, consequentially an order that Bradbury remove the IBCs from DBL’s premises. Alternatively, if the disclaimer is not set aside, DBL seeks orders that the State remove the goods on the basis that either the goods are bona vacantia (ie have no owner) or on the basis that it is ‘appropriate’ that the property vest in the State pursuant to s 568F(1)(b) of the CA.
The relief under s 568F(1)(b) sought in paragraph 3 of the originating process is central to this appeal. In that respect, s 568F(1)(b) of the CA provides that:
(1)The Court may order that disclaimed property vest in, or be delivered to:
(a) a person entitled to the property; or
(b)a person in or to whom it seems to the Court appropriate that the property be vested or delivered; or
…
(emphasis added)
Essentially, DBL contends that the State is an ‘appropriate’ person within the meaning of s 568F(1)(b), as it was implicated in regulatory action leading to Bradbury’s delivery of the IBCs to DBL.
Relevant factual background
In July 2017, the Victorian Government established the Resource Recovery Facilities Audit Taskforce (‘the RRFA Taskforce’). The taskforce was to inspect resource recovery facilities across the State and tackle stockpiles that might pose a fire risk. The taskforce was chaired by the EPA and comprised of the Metropolitan Fire Brigade, the Country Fire Authority, Emergency Management Victoria (‘EMV’), WorkSafe Victoria and the Department of Environment, Land, Water and Planning. The taskforce commenced an audit of recycling facilities across Victoria to identify stockpiling materials that posed a fire risk, undertaking joint inspections and taking action when required.
According to an affidavit of Mr Stephen D’Arcy affirmed 6 October 2020, on 30 August 2018, WorkSafe Victoria became aware that a fire had ignited at 420 Somerville Road, Tottenham (‘the Tottenham site’) in a warehouse containing chemical waste. Subsequently, on 31 August 2018, WorkSafe Victoria’s chief of business operations, Marnie Williams, announced that WorkSafe Victoria would conduct inspections on industrial premises in Melbourne’s inner western suburbs to ensure that any potentially dangerous goods were being stored correctly. Accordingly, WorkSafe Victoria inspected a number of workplaces in Melbourne’s inner west which resulted in formal notices and directions being issued.
Mr D’Arcy deposed that the Tottenham site was connected with a Mr Graham White.[4] Subsequently, in late December 2018, WorkSafe Victoria attended upon eight other sites in Epping and Campbellfield associated with Mr White (‘the White sites’).
[4]Incorrectly referred to as ‘Mr Graeme White’ in Mr D’Arcy’s affidavit.
Mr D’Arcy deposed that in early January 2019 the Victorian government established a multi-agency response to deal with the White sites. The membership of that multi-agency response changed over time, but at different times included among others WorkSafe Victoria, the EPA, FRV, Melbourne Water, EMV, Victoria Police, and relevant municipal councils.
By an internal WorkSafe Victoria email dated 9 January 2019 with the subject line ‘High Risk Dangerous Goods Sites – Epping and Campbellfield’, WorkSafe Victoria’s Michael Coffey noted that the EPA had formally handed over the position of Chair of the ‘interagency committee’, and that the new Chair of that committee would be WorkSafe Victoria. The email also advised that the name of that committee would change to the ‘Interagency Engagement and Preparedness Committee’ (‘the IEPC’). In an affidavit made by DBL’s solicitor, Mr Jonathan Lean, on 6 October 2020, Mr Lean asserts that this email evidenced the takeover of the RRFA Taskforce by WorkSafe Victoria. On the present state of the evidence this is unclear. It may be that WorkSafe Victoria took over the RRFA Taskforce; alternatively WorkSafe Victoria may have taken over as chair of the multi-agency response to deal with the Tottenham site fire; another possibility is that the IEPC is yet another multi-agency committee. Whatever the case, the email makes clear that the Executive Oversight Committee established to oversee the response to the discovery of waste material at the White sites would continue to provide executive oversight whilst an Operational Oversight Committee would be established to focus on execution.
Mr D’Arcy otherwise deposed that in light of the perception that the White sites presented an immediate danger, in early January 2019 WorkSafe Victoria led a clean-up process which comprised two inter-agency groups, the Executive Oversight Group (‘the EOG’) and the Operational Oversight Group (‘the OOG’). These entities bear similar names to, and are probably identical with, the Executive Oversight Committee and Operational Oversight Committee referred to in the WorkSafe Victoria email of 9 January 2019. The EOG was tasked with strategic decision making for the clean-up of the White sites, whilst the OOG dealt with operational decisions and assistance at each site. After July 2019 the EOG and OOG merged into one body.
Mr D’Arcy deposed that given that WorkSafe Victoria was to lead the clean-up at the White sites, also in early January 2019 WorkSafe Victoria established an internal High-Risk Dangerous Goods Taskforce, and appointed a WorkSafe Victoria employee as its director (‘the WorkSafe HRDG Taskforce’). The purpose of the WorkSafe HRDG Taskforce was to clean up the dangerous goods at the White sites.
On 31 January 2019 WorkSafe Victoria inspected a property located at 9–11 Brooklyn Court, Campbellfield (‘the Brooklyn Court property’) for dangerous goods. Following the inspection, the site was referred to WorkSafe Victoria’s investigators. Subsequently, on 16 April 2019, a fire occurred at 16–18 Thornycroft Street, Campbellfield (‘the Thornycroft site’). The Thornycroft site and the Brooklyn Court property, along with other sites located in Yellowbox Drive, Craigieburn and 1805 Sydney Road, Campbellfield, were all operated by Bradbury (‘the Bradbury sites’). As each of the Bradbury sites were discovered, they were assigned to the WorkSafe HRDG Taskforce.
Additionally, Mr Lean exhibited a ministerial brief for the then Minister for Workplace Safety dated 31 December 2018 which advised that an inter-agency meeting would be held with the Victorian Government Solicitor’s Office to consider a contingency plan for the safe removal of chemicals from eight sites in Epping and Campbellfield.[5] Further, Mr Lean exhibited Ministerial briefs prepared on 2 January 2019 and 7 January 2019 for the then Minister for Workplace Safety that provided the Minister with an update to the effect that WorkSafe Victoria would continue to conduct visits of surrounding premises in Epping and Campbellfield.
[5]Likely the White sites.
Mr D’Arcy deposed that in the period between late December 2018 and 5 April 2019, the WorkSafe HRDG Taskforce attended upon and procured the clean-up of the White sites and the Bradbury sites. Consistent with the above, before its merger with the OOG, the EOG provided whole-of-government oversight of the operations of the WorkSafe HRDG Taskforce. Mr D’Arcy deposed that another entity, the IEPC (presumably the same entity mentioned in the WorkSafe Victoria email of 9 January 2019), oversaw the readiness and preparedness of agencies to respond to emergency situations at the White sites or Bradbury sites during the clean-up.
By a letter dated 11 September 2019, the EPA informed DBL that the 2019 IBCs had been delivered to DBL after having been discovered by the EPA & WorkSafe Victoria during an inspection of a warehouse located in Campbellfield. The inspection had identified the illegal storage of waste on the site and the EPA noted that the material had been removed from the site to DBL’s premises in response to improvement notices issued on Bradbury by WorkSafe Victoria.
The s 568F(1)(b) claim
DBL submits on its claim under s 568F(1)(b) of the CA that the State is an ‘appropriate person’ in whom the 2019 IBCs ought to vest because the 2019 IBCs were delivered to DBL by Bradbury in circumstances where:
(a) the State, pursuant to a multifarious legislative scheme, is responsible for protecting Victorians from environmental hazards such as those which are said to be created by the IBCs;
(b) a multi-agency taskforce, established by the State in attempted discharge of that responsibility, investigated Bradbury and the relevant premises from which the 2019 IBCs came;
(c) two agencies, whether operating under the auspices of that taskforce or by reason of its work, issued ‘improvement notices’ to Bradbury which could be complied with by removing the 2019 IBCs from Bradbury’s premises[6] and delivering them to a person licensed to store them;
[6]It is not entirely clear from which Bradbury site all the 2019 IBCs came; however it seems that perhaps all, but certainly most of the 2019 IBCs came from the Brooklyn Court property. It was submitted on appeal by the State (and not disputed) that the whole of the 2019 IBCs came from Brooklyn Court.
(d) by reason of those notices, Bradbury transported the 2019 IBCs to DBL, but did so under false pretences with the result that DBL took delivery of goods which it was not licensed to store;
(e) the agencies did nothing to ensure that the IBCs were delivered to an appropriately-licensed recipient; and
(f) at least one of those agencies reported to the relevant minister about, and during the course of, the relevant events.
On 18 August 2020, DBL’s solicitors prepared and later served three Form 42AA subpoenas addressed to the EPA, FRV and the VWA. In accordance with the Rules, service of those subpoenas was also effected on the State. As issued, the subpoenas were in relevantly identical form.
DBL submits that the documents sought by the subpoenas concerned the involvement of members of the relevant taskforce in the circumstances in which the 2019 IBCs were transmitted to DBL between 4 March and 27 March 2019. The relevant taskforce was referred to in the subpoenas as the RRFA Taskforce. The subpoenas sought inter alia documents relating to the White sites and the Bradbury sites, and specified a relevant period of 22 July 2018 to 5 April 2019.
On 27 August 2020 the State wrote to DBL’s solicitors setting out its concerns with respect to the subpoena. The State’s concerns included the absence of any evidence filed in the proceeding concerning Mr White and the White sites, an absence of evidence referable to the taskforce identified in the subpoena, and an absence of evidence relating to some of the locations identified in the subpoenas as the Bradbury sites. The letter also stated that if relevance could be established, production of the documents would likely give rise to issues of public interest immunity.
On 1 September 2020, DBL filed an affidavit of Mr Lean. Mr Lean sought to address the State’s concerns, providing information relating to the Bradbury sites and to an alleged awareness of the EPA and WorkSafe Victoria of stockpiles of dangerous goods at those sites.
On 7 September 2020 the State lodged a formal objection to the subpoenas. The State’s objection comprised three grounds: firstly, the absence of evidence before the Court to disclose a legitimate forensic purpose; secondly, the breadth of the schedule which was said to be too broad and constituted a fishing expedition; and thirdly, a real risk that at least part of the material required for production would be subject to claims of public interest immunity.
Specifically in relation to the alleged absence of evidence disclosing legitimate forensic purpose, the State outlined its objections (on a non-exhaustive basis) as follows:
1.The absence of evidence before the Court identifying the relevance of Mr Graham White to the issues in this proceeding;
2.The absence of evidence before the Court identifying the relevance of the ‘White sites’ as described in subpoena Schedule A, to the issues in this proceeding;
3.The absence of evidence before the Court identifying the relevance all (sic) the Bradbury sites as described in subpoena Schedule A, as only some of the sites are referred to in evidence presently before the Court;
4.The absence of evidence supporting the relevance of the date range for the relevant period as described in the schedule, noting that the date of 22 July 2018 is a date approximately 18 months prior to the disclaimer notice issued by the first defendant the subject of this proceeding;
5.The absence of any explanation for the necessity of issuing subpoenas with identical schedules to each of the EPA, VWA and FRV … in circumstances where the plaintiff alleges that these agencies were all working collaboratively as part of a ‘Taskforce.’
On 11 September 2020 the VWA also gave notice of objection on the grounds that the subpoena did not have a legitimate forensic purpose, was oppressive to the VWA, constituted a fishing expedition, and captured documents which attract public interest immunity. On 10 September 2020, the EPA had given a notice of objection to the subpoena served on it on relevantly similar grounds to those advanced by the VWA.
On 18 September 2020, following correspondence between DBL and FRV, FRV produced two bundles of documents in response to the subpoena. Of those documents, legal professional privilege was claimed over one bundle. DBL later accepted the privilege claim.
Following the VWA’s objection to the subpoena served on it, DBL communicated with the VWA with a view to reducing the scope of the subpoena. DBL communicated with the EPA to discuss similar reductions. The communications bore fruit and on 9 and 10 November 2020 respectively, DBL agreed with the VWA and the EPA to withdraw each party’s objections and to amend the scope of the subpoenas, without admission.
The revised subpoenas narrowed the time period from 22 July 2018 to 5 April 2019 to 1 December 2018 to 5 April 2019, removed any reference to Mr White or any of the White sites and substantially reduced the scope of documentation sought.
Ultimately, the VWA subpoena required production of:
1.All Entry Reports issued by WorkSafe in respect of inspections at the six Bradbury Sites which were undertaken during the Relevant Period;
2.All formal notices issued by WorkSafe in respect of the six Bradbury Sites during the Relevant Period; and
3.All external meetings recorded in the Fieldlink system in respect of inspections at the six Bradbury Sites created during the relevant period.
‘Relevant Period’ was defined as 1 December 2018 to 5 April 2019 and the schedule to the subpoena contained a definition of ‘the six Bradbury Sites.’
The final form of the EPA subpoena required production of:
1.Documents created during the Relevant Period relating to any inspections, investigations or actions (proposed or otherwise) during the Relevant Period by any one or more members of the Taskforce and which also relate to any one or more of:
(a) Bradbury Industrial Services Pty Ltd (Bradbury);
(b)any of the six sites identified in Schedule A attached where Bradbury is listed as the occupier (the Bradbury sites),
limited to the following (documents created or stored electronically):
(a)formal notices (being notices of direction given to Bradbury pursuant to any legislative power of the EPA or Taskforce) issued by the EPA;
(b) entry reports;
(c)ministerial briefs or updates to the State of Victoria from the Taskforce;
2.Copies of any test results from samples taken by the EPA, of the contents of the IBCs which are the property of Bradbury, currently located at DBL’s premises (which are the subject of this proceeding) – limited to documents created or stored electronically.
The hearing of the State’s objections
Notwithstanding the production made by FRV[7] and the agreement reached between DBL and the producing parties, the State proceeded with its objection. The Associate Judge heard the objection on 11 November 2020.
[7]On the terms of the original subpoena.
In written submissions filed 5 October 2020, the State advanced two core propositions in support of its contention that DBL had failed to establish a legitimate forensic purpose. These two core propositions had not been previously advanced.
First, the State submitted that there is no authority for the proposition that regulatory action could make someone an ‘appropriate’ person for the purposes of s 568F(1)(b) of the CA.
Secondly, the State submitted that even if regulatory action could make someone an appropriate person for the purposes of s 568F(1)(b), each of FRV, the EPA and the VWA were independent statutory bodies and as such their actions could not be attributed to the State so as to make the State an appropriate person. The State relied upon the Crown Proceedings Act 1958 (Vic) (‘the Crown Proceedings Act’), emphasising ss 22 and 23 of that act which provide:
22 In what courts proceedings to be taken by or against the Crown
(1)Every proceeding which may be taken by or against the Crown under this Part shall be taken in the court which would have jurisdiction if the proceeding were between subject and subject.
(2)Every proceeding under this Part shall be taken by or against the Crown under the title of the “State of Victoria” and shall be instituted and proceeded with in accordance with any procedure of the court specifically applicable thereto or, if no procedure is specifically applicable thereto, as nearly as possible in accordance with the procedure applicable to proceedings between subject and subject
23Liability of the Crown in contract
(1) Subject to this Part—
(a)the Crown shall be liable in respect of any contract made on its behalf in the same manner as a subject is liable in respect of his contracts; and
(b)the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.
…
(3) No proceeding shall lie against the Crown under this Part—
(a)in respect of any contract made by or on behalf of any public statutory corporation; or
(b)in respect of any tort of any such corporation or of any of its servants or agents or of any independent contractor employed by it—
and nothing in this Part shall affect any provision in any Act by which any liability of any such corporation or of any of its members officers or servants in respect of any matter is specifically limited or conditioned, but no such corporation shall on the ground that it is the Crown or the servant or agent of the Crown be exempt from any liability to which it would otherwise be subject.
In essence, the State contended that for these two core reasons DBL’s claim under s 568F(1)(b) of the CA was misconceived and as such DBL could not establish a legitimate forensic purpose to support the subpoenas. The contended flaw in the subpoenas was not so much a disconnect between the documents sought and the claim articulated, but rather that the claim itself was misconceived such that the subpoenas could not serve any legitimate purpose.
The State also took issue with the identification of the RRFA Taskforce as the ‘relevant taskforce’ in the subpoenas, noting that many of the subpoenaed documents related to the activities of the WorkSafe HRDG Taskforce, among other bodies.
Further, the State submitted that the scope of the FRV subpoena was too wide.
Decision of the Associate Judge
On 9 December 2020 Efthim AsJ handed down judgment, disallowing the State’s objection to inspection and refusing to set aside the subpoenas.
The Associate Judge concluded that the State’s submission that it was not an appropriate person for the purposes of s 568F(1)(b) of the CA was a submission in the nature of a strike-out application, which had not been made, and was in any event a matter that could be raised at trial. Accordingly, the Associate Judge concluded that the scope of s 568F(1)(b) of the CA was a live issue and that DBL was entitled to obtain documents relevant to its case as articulated. The Associate Judge also held that the provisions of the Crown Proceedings Act relied upon by the State had no application to the proceeding brought under s 568F(1)(b) of the CA.
In relation to the contention that the WorkSafe HRDG Taskforce was separate to the RRFA Taskforce, the Associate Judge held that it was arguable on the evidence that the WorkSafe HRDG Taskforce was a subset of the RRFA Taskforce and, additionally, that WorkSafe Victoria was acting pursuant to the auspices of the RRFA Taskforce when it created the WorkSafe HRDG Taskforce to clean up the Bradbury sites.
Whilst the Associate Judge held that the FRV subpoena was cast too widely, he allowed inspection by DBL on the ground that the documents had been produced by FRV without objection. The Associate Judge made orders giving the State a first right of inspection over the documents produced, including those produced by FRV, to give it an opportunity to raise any questions of privilege.[8]
[8]Noting of course that the FRV had made a claim of legal professional privilege over part of the documentation produced (later accepted by DBL); see [34] above.
The State’s appeal
By notice of appeal filed 23 December 2020, the State appealed against the Associate Judge’s orders pursuant to r 77.06 of the Rules. In written submissions filed in support of the appeal, the State correctly noted that an appeal brought pursuant to r 77.06 of the Rules is in the nature of a rehearing and requires that an error of law be demonstrated before appellate power may be exercised. In support, the State referred to the decision of Ferguson J in Oswal v Carson (‘Oswal’).[9] Importantly, the passage cited by the State notes additionally that if the orders from which an appeal is brought relate to a matter of practice and procedure (as the orders in Oswal and in this appeal do) an appellate court will exercise particular caution in reviewing the decision.
[9][2013] VSC 355 [11].
In that respect, her Honour referred[10] to the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc[11] (‘Adam P Brown Male Fashions’), where the majority noted:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views … For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) (1946) 46 SR (NSW) 318, at p 323:
“… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
… It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.
[10]Ibid [11] (Ferguson J).
[11](1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).
In evaluating the State’s submissions on appeal, I have had regard to the question of injustice, substantial or otherwise, which accrues to the State under the Associate Judge’s orders.
The State’s notice of appeal read as follows:
1. The primary judge erred in finding that:
1.1s 568F of the Corporations Act 2001 (Cth) (s 568F) can provide the basis for the relief sought by the Plaintiff and against the Third Defendant;
1.2the Third Defendant could be implicated in, and the Plaintiff’s relief against the Third Defendant under s 568F could be founded on, the actions of one or any or all of the Environment Protection Authority (the EPA), the Victorian WorkCover Authority (the VWA) and Fire Rescue Victoria (FRV);
1.3any such implication and liability was based on the involvement of the Third Defendant in the formation of a “task force” in July 2017 to investigate the illegal waste and dangerous goods operations of the Second Defendant;
1.4any such implication and liability was available when the uncontradicted evidence was that:
(a)the “task force” identified by the Plaintiff in the subpoenas did not investigate the illegal waste and dangerous goods operations of the Second Defendant;
(b)none of the EPA, the VWA and FRV became aware of the existence of the Second Defendant’s operations (or the goods the subject of this proceeding) until a date after the date when the first of two batches of goods, formerly in the possession of the Second Defendant, were delivered to the Plaintiff; and
1.5FRV’s compliance with the subpoena addressed to it was a sufficient answer to the objection that the subpoena was too wide.
In its written submissions the State advanced six grounds broadly consistent with the notice of appeal, viz:
(i) Ground 1 – s 568F is incapable of providing a basis for the relief sought;
(ii) Ground 2 – relief against the Crown cannot be founded on the actions of the subpoena recipients;
(iii) Ground 3 – the Crown was not involved in any ‘taskforce’;
(iv) Ground 4 – the taskforce expressly identified in the subpoenas is not relevant;
(v) Ground 5 – knowledge at the time of the first delivery;[12]
(vi) Ground 6 – compliance as a basis for dismissing the objection to the FRV subpoena.
[12]That is, the State’s knowledge (or lack thereof) in respect of the delivery to DBL of the 2018 IBCs.
In what follows, it is convenient to deal with grounds 1 and 2 together, grounds 3 and 4 together, and each of grounds 5 and 6 separately. I will also deal with an overarching complaint by the State that the Associate Judge applied the wrong method in assessing the legitimate forensic purpose of the subpoenas, which was not identified as a numbered ground but was advanced in oral argument without objection.
Grounds 1 and 2
In addition to ss 22 and 23 of the Crown Proceedings Act (set out above), the State also relied upon s 25 of the Crown Proceedings Act which reads:
25 Rights of parties
In any proceeding under this Part in which the State of Victoria is a party the rights of parties shall as nearly as possible be the same and judgment may be given and costs awarded on either side and every judgment order or decree shall be subject to the same rights of re-hearing appeal and review, as in a proceeding between subject and subject.
The State relied on s 25 of the Crown Proceedings Act in support of the contention that in order for DBL to rely upon s 568F(1)(b) of the CA, it must, as in a proceeding between subject and subject, be able to point to a relevant legal relationship between the party the subject of the putative s 568F(1)(b) order (here, the State) and the persons whose conduct is the basis for the invocation of s 568F(1)(b) (here the EPA, the VWA and FRV, or any of them). The State contended that the s 568F(1)(b) claim as articulated by DBL did not establish this legal relationship. Relatedly, the State advanced the proposition that s 23 of the Crown Proceedings Act provides that the Crown cannot be liable for torts of independent statutory bodies, and that by analogy the actions of the regulatory bodies in this case could not be relied upon as against the State for the purposes of s 568F(1)(b). Relevantly, the State drew attention to what it claimed was the shifting or imprecise nature of the claim alleged by DBL. With some justification, the State was critical of DBL’s contention that the State was ‘responsible’[13] for protecting Victorians from environmental hazards such as those which were said to be created by the IBCs, and of the proposition that the State was amenable to an order under s 568F as a result of an implicit failure of the state-based agencies to ensure that the IBCs were delivered to an appropriately licensed recipient.
[13]The State contended that the fact that the State exercised legislative power over particular activities, by establishing ‘regulatory agencies’ in respect of those activities, did not mean that it assumed legal responsibility in respect of those activities. DBL accepted that it referred to responsibility in a general manner; submitting that: ‘the State takes responsibility and discharges that responsibility by enacting legislation, such as the Environmental Protection Act and the Dangerous Goods Act, and then allocating responsibility for the oversight of those Acts to the relevant Ministers ... it’s a general submission stating that the State has taken upon itself responsibility to regulate environmental hazards, and the mechanism by which it has done that is as I’ve just stated.’
The State relied upon the decision of Young CJ (in equity) in Sullivan Energy Services International Pty Ltd (in liq) (‘Sullivan’).[14] In that case his Honour stated, obiter (in a rare case involving an attempt to rely on s 568F(1)(b) of the CA):[15]
I do not consider that as a general rule it is open to the plaintiff to select some passer-by who might be a dealer in the property in question, add that person as a party and then suggest that the property might vest in that person. That is not quite what has happened here, but it is close to it. It seems to me that it is only appropriate to make a vesting order in order to give effect to the general policy of the law of disclaimer which still comes out in sections such as s 568D(2), that whilst the liquidator is to be relieved of the problems caused by the property, the disclaimer is to cause as little prejudice as possible to all other interested persons.
[14](2002) 171 FLR 106.
[15]Ibid 112-113 [42] (Young CJ in Equity).
The State submitted that the invocation of s 568F(1)(b) by DBL was an attempt to vest the property on a ‘passer-by’ in the sense used by his Honour.
DBL accepted, both before the Associate Judge and on appeal, that the s 568F(1)(b) claim was somewhat novel. Nonetheless, it relied upon the broad language deployed in s 568F(1)(b) and drew attention to the paucity of cases dealing with the application of the section. It contended that the State was not a mere ‘passer-by’ in the sense referred to in Sullivan. DBL also submits that s 568F of the CA forms part of a suite of provisions that create mechanisms to ameliorate the effects on third parties of exercises of a liquidator’s power to disclaim onerous property. Accordingly, DBL submits that s 568F does not create a wrong-based cause of action, but rather confers a broad discretionary power on the Court to ameliorate the effect of a disclaimer by vesting goods in a person whom the Court thinks is appropriate.
Moreover, DBL contends that it was neither appropriate nor necessary for the Associate Judge, upon the hearing of an application to set aside a subpoena, to undertake the kind of objective assessment of the viability of the DBL case which is implied by the State’s argument. It contends that the matters raised by the State under grounds 1 and 2 are matters that might be advanced in support of an application for summary dismissal, or are matters by way of defence to be determined at trial.
DBL submits, and the Associate Judge found, that in undertaking any assessment as to legitimate forensic purpose the Court should proceed on the premise that the claim is a live one and that the question of legitimate forensic purpose should be determined by reference to the case as framed by the plaintiff.
With respect, I agree. Whilst the matters raised by the State as to the strength of the DBL claim are of undoubted substance (DBL’s submissions as to the scope of s 568F(1)(b) appear to imply the existence of a discretion to be exercised by reference to broad notions of justice and fairness), the matters raised by the State are matters which in essence are defences to the s 568F(1)(b) claim.[16]
[16]
In my opinion, when determining the question of legitimate forensic purpose in the context of a subpoena objection, a court is not required to assess the strength of defences raised by a defendant to the claim or to otherwise undertake an objective assessment of the overall viability of the claim. Such a course would, at least in the circumstances of this case, conflate the tasks of determining a summary dismissal application or determining the claim at trial with the discrete task of determining a subpoena objection.
The latter task proceeds on the premise that the claim of the party issuing the subpoena is viable and then examines the question of legitimate forensic purpose by reference to the categories of documents sought in light of the claim as articulated by the issuing party.[17] It does not involve finding an absence of forensic purpose because of some other flaw in the claim or because of a ground in defence which has not been successfully rebutted.
[17]Where pleadings have been filed, the assessment would be carried out by reference to the pleaded claim.
The ground proceeds upon the premise that the Associate Judge should have undertaken that exercise and then formed the view that the s 568F(1)(b) claim was hopeless, with the necessary consequence that the subpoenas could not have a legitimate forensic purpose. In my opinion, the Associate Judge was not required to undertake that exercise, or to so conclude. Had he done so, his Honour would have been undertaking an exercise akin to the determination of a summary dismissal application in circumstances where such application had not been made.
Accordingly, in my opinion, the Associate Judge did not err in rejecting the State’s contention that s 568F(1)(b) was incapable of providing a basis for the relief sought, nor in failing to hold that the relief under s 568F(1)(b) against the State could not be founded on the actions of the EPA, the VWA or FRV.
Further, by ground 2 it submitted that the Associate Judge erred both in holding that the Crown Proceedings Act did not apply in this proceeding, and in disregarding the application of the Crown Proceedings Act to the relationship between the State and the statutory corporations. Before the Associate Judge, the State had contended that the effect of s 23 of the Crown Proceedings Act was that the State could not be liable for contracts made by, or torts committed by, the statutory corporations (FRV, the VWA and the EPA), and that by analogy the conduct of those corporations could not be relied upon in support of a contention that the State was an appropriate person for the purposes of s 568F(1)(b) of the CA.
The same reasoning for rejecting the State’s appeal on ground 1 applies with respect to ground 2. The State is correct in asserting that the Crown Proceedings Act applies to a proceeding issued in a state court exercising federal jurisdiction, except where the Constitution or the laws of the Commonwealth otherwise provide. A fair reading of the Associate Judge’s reasons in the context of the arguments advanced suggests that his Honour was stating no more than that the sections of the Crown Proceedings Act relied upon before him (principally s 23) did not exclude the possibility that in the circumstances of this case the actions of such corporations could form part of the matrix of facts to be considered in the broad evaluative context of determining whether the State is an appropriate person for the purposes of the s 568F(1)(b) claim.Again, ground 2 proceeds on the premise that the Associate Judge was required to undertake an objective assessment of the strength of the DBL claim, determine that it was misconceived, and as a result find that the subpoenas could not have a legitimate forensic purpose.
Substantial injustice
Even if such an error had been established, I do not consider that the State can point to substantial injustice as a result of the orders.
In argument both parties accepted that the question of any substantial injustice resulting from the order under appeal was a matter relevant for determination of the appeal, in accordance with the principle in Adam P Brown Male Fashions referred to above.
The State advanced three bases of substantial injustice. Firstly, that allowing access to documents produced under a subpoena which did not have a legitimate forensic purpose would be a deployment of the Court’s coercive subpoena powers in impermissible circumstances and would therefore in and of itself occasion substantial injustice. Secondly, that allowing the subpoenas to stand would require the State to undertake inspection of the documents produced for the purposes of considering potential claims for public interest immunity. In effect, the State submits that it is a substantial injustice for it to undertake this unnecessary work. Thirdly, the State submits that a failure to set aside the subpoenas would amount to a recognition of legitimate forensic purpose, and as such might prompt a further discovery application against the State.
In my opinion, none of those matters amount to substantial injustice.
As to the first basis, the relevant substantial injustice is substantial injustice to the State. Substantial injustice to the State does not arise where the Court’s coercive subpoena powers are deployed against a subpoena addressee who produces documents without objection.[18] If the State’s contention is accepted, it would effectively put appeals against refusals to set aside subpoenas in a special category of interlocutory order where substantial injustice arises as a matter of course because of the nature of the order appealed from. That is not appropriate, nor consistent with authority.[19]
[18]As was the case here with FRV, and after the scope of the subpoena narrowed, by the EPA and the VWA.
[19]Oswal (no 9).
As to the second and third bases of substantial injustice, the fact that the State may have to inspect the documentation produced pursuant to the subpoenas or make discovery of documents in like categories does not amount to substantial injustice. Inspection of the produced documents or participation in the usual interlocutory processes in a case such as the present does not in my opinion amount to substantial injustice. No substantive rights of the State have been interfered with. Whilst the burden of the State’s task in defending the claim may be greater than it would be if the subpoenas were set aside, the State will defend the claims made against it and if successful it will be able to seek its costs from DBL. DBL has been put on clear notice of the alleged defects in its claim.
Grounds 3 and 4
Ground 3 concerns the primary judge’s finding that ‘it is at least arguable’ that the State was involved in a taskforce or taskforces which in some ways related to the IBCs. Relatedly, by ground 4 the State contends that the subpoenas issued to FRV and the EPA could not have had a legitimate forensic purpose as they seek documents relating to the ‘RRFA Taskforce’, which it contends was not involved in the investigations into the Bradbury sites. These grounds rely on Mr D’Arcy’s affidavit affirmed 6 October 2020, where he deposes that the RRFA Taskforce was not involved in the investigations into the Bradbury sites from which the IBCs are alleged to have been delivered. Instead, he says that the clean-up of the Bradbury sites was carried out under the auspices of the Worksafe HRDG taskforce. Accordingly, the State contends that any documents created by that taskforce are not relevant to any issue raised in this proceeding.[20]
[20]This ground has no relevance to the VWA subpoena, as there was no reference to a taskforce in the form of that subpoena that was ultimately pressed.
The Associate Judge accepted, and it is not disputed, that the plaintiff bears the burden of establishing that it is ’on the cards’ or that there is ’a reasonable possibility’ that the documents sought under the subpoena will materially assist its case. However, the reasonable possibility test is to be applied flexibly and with common sense.[21] In applying the reasonable possibility test, the Associate Judge was entitled to proceed upon the basis that an evaluation of the cogency of the relevant evidence is to be assessed by reference to the capacity of each party to produce that evidence.[22] In circumstances where DBL is a stranger to the creation of the taskforce or various taskforces, DBL cannot be expected to be familiar with the nomenclature, terms of reference, or acronyms used to describe those taskforces. Accordingly, it is in my opinion not appropriate to make too much of any alleged lack of clarity in the evidence concerning the roles and responsibilities of the various taskforces.
[21]Johnson v Poppeliers (2008) 20 VR 92, 106-107 [42] (Kyrou J).
[22]The so-called rule in Blatch v Archer (1774) I Cowp 63; 98 ER 969.
Moreover, a fair reading of the evidence, assessed in a common sense manner, provides support for the Associate Judge’s finding that for the purposes of the application before him that ‘it is possible the WorkSafe taskforce was in effect a sub-set of the RRFA Taskforce’ or sprung out of the former’s work; or alternatively that WorkSafe Victoria was acting pursuant to the auspices of the government-wide taskforce when it set up its own internal taskforce to do certain tasks.
Whilst not entirely clear, the evidence summarised in [15] to [25] above provides a sufficient basis for the Associate Judge’s findings, which are properly understood as being to the effect that it is arguable that there was State involvement in the activities of the WorkSafe HRDG Taskforce, which activities included the clean-up of the Bradbury sites. It seems clear enough that there was inter-agency involvement in relation to the clean-up of the White sites and most likely the Bradbury sites; particularly as Mr D’Arcy deposes that the Bradbury sites were assigned to the WorkSafe HRDG Taskforce, which initially dealt with the White sites. Whether the WorkSafe HRDG Taskforce was a subset of the RRFA Taskforce or grew out of the activities is not material.
Further, the State’s contention that the EPA subpoena should be set aside because it seeks documents in respect of the RRFA Taskforce lacks merit. Contrary to the State’s submissions, the terms of the EPA subpoena do not in fact require the production of documents in respect of the RRFA Taskforce. Although the schedule identifies that the documents sought are documents created by particular entities which were members of that taskforce, the documents sought are not documents of the particular taskforce but are documents which relate to, inter alia, Bradbury or the Bradbury sites. The subpoena does not require production of documents in respect of the taskforce per se; rather, the subpoena identifies the membership of the taskforce as the hook by which it identifies the persons who carried out the inspections, investigations or actions relating to Bradbury and the Bradbury sites.
Again, there is no substantial injustice to the State in allowing the order to stand for the reasons stated above.
Ground 5 – knowledge at the time of the first delivery
This ground relies upon a disconformity between the terms of DBL’s amended originating process and the case advanced by DBL before the Associate Judge. Relevantly, paragraph 3 of DBL’s amended originating process seeks a s 568F(1)(b) order in relation to all goods disclaimed, which includes both the 2018 and 2019 IBCs. DBL’s case as argued before the Associate Judge limited the s 568F(1)(b) claim to the 2019 IBCs. Accordingly, the State contended on appeal that because the originating process refers generally to ‘the Goods’ (necessarily encompassing both the 2018 and 2019 IBCs), a legitimate forensic purpose could only be established if the sought material related to both the 2018 and 2019 IBCs. DBL conceded that it sought material relating only to the 2019 IBCs. This ground was not referred to in oral argument but was not formally abandoned.
The ground is without merit. It was not argued before the Associate Judge. Moreover, the fact that DBL may be able to establish legitimate forensic purpose with respect to only part of the goods the subject of its claim does not mean there is an absence of legitimate forensic purpose, even though the originating process refers to a wider range of goods. Plainly, the State’s argument would fail if DBL’s amended originating process had sought in the alternative relief in respect of only the 2019 IBCs. To find that the Associate Judge erred in failing to set aside the subpoena on such a basis would be a triumph of form over substance and is hardly consistent with the facilitation of the overarching purpose set out in Part 2.1 of the Civil Procedure Act 2010 (Vic) (‘the CPA’).
If this ground was accepted, the effect of the State’s contention is that the subpoena would be set aside and the documents would be returned to the producing parties. Inevitably, DBL would then obtain leave to make the minor amendment to its originating process (to refer only to the 2019 IBCs) and then issue a subpoena in identical terms to the producing parties, who would have once again to produce the documents. This points to an absence of substantial injustice on a basis additional to the matters above.
Ground 5 is rejected.
The plaintiff did not identify expressly and precisely the legitimate forensic purpose for which each category of documents was sought
In addition to the numbered grounds, at the hearing of the appeal the State also pressed a complaint that the Associate Judge had erred by undertaking only a superficial assessment of the content of the subpoenas and by failing to require the plaintiff to engage in the ‘usual’ category by category assessment of each of the three subpoenas. In its written and oral argument, the State drew attention to what it contended was a difference in approach between that followed by the Associate Judge on the one hand, and the approach followed by Ferguson J in Oswal and by the Court of Appeal of the Supreme Court of New South Wales in NSW Commissioner of Police v Tuxford & Ors (‘Tuxford’).[23]
[23][2002] NSWCA 139.
In Oswal, the substance of the objection was that the four categories of documents sought went to issues which were irrelevant to the plaintiff’s pleaded case.[24] Necessarily, as part of the resolution of that particular dispute, both the Associate Judge, and her Honour on the appeal, looked at the precise terms of the four categories and examined the question of the subpoenas’ legitimate forensic purpose, category by category, by reference to the pleaded case.
[24]Oswal (no 9) [13] (Ferguson J).
To similar effect, in Tuxford, the Court of Appeal considered the categories in detail in large part because there was a submission (entirely understandable given the terms of the subpoena) that production of such a vast body of documents was oppressive.[25] That submission called for an examination of the categories of documents sought.
[25][2002] NSWCA 139 [9] (Brownie AJA).
In contrast, in the present case the State’s written submissions before the Associate Judge made it clear that the gist of the State’s objection was contained in the core propositions that regulatory action could not make the State an appropriate person under s 568F(1)(b), and that it was not open to the Court to treat the VWA, the EPA and FRV as synonymous with the State, such that DBL’s claim could not give rise to a legitimate forensic purpose. The State’s oral submissions before the Associate Judge, both in chief and in reply, proceeded in a substantially similar manner.
The gist of the State’s argument on this ground is that notwithstanding DBL’s primary response to the State’s core propositions advanced before the Associate Judge, and accepted by him, DBL was nevertheless required to go through each part of the subpoena paragraph by paragraph and establish a legitimate forensic purpose in addition to its rebuttal of the State’s core propositions. The State contends that DBL did not do so and the Associate Judge erred, inter alia, in not requiring DBL to do so.
There are two answers to this contention.
First, the rejection of the State’s core propositions with respect to the deficiencies in DBL’s s 568F(1)(b) case, necessarily means that the assessment of legitimate forensic purpose was carried out by reference to DBL’s broad interpretation of the permissible scope of s 568F(1)(b). If one accepts as the Associate Judge did (and as do I) that the question of legitimate forensic purpose is to be undertaken by reference to the case as articulated by DBL, then this case entails a broad evaluative exercise involving an examination of all circumstances pertaining to the role of the State and its agencies in connection with the clean-up and relocation of the 2019 IBCs from the Bradbury sites to DBL’s premises. In that context it is unsurprising that the scope of documentation referable to that purpose is broad enough to encompass the remaining categories in the subpoenas.
Secondly, such a submission sits somewhat uneasily with the manner in which the State argued the matter before the Associate Judge. Commendably, counsel for the State concentrated the bulk of the State’s submissions on the State’s core propositions to the effect that the s 568F(1)(b) claim was defective.
There were some exceptions to this. Before the Associate Judge, the State made cogent submissions as to the breadth of the FRV subpoena, principally but not exclusively by reference to the time period of the documents relating to the White sites and the absence of forensic purpose in connection with the White sites generally. This is dealt with in connection with ground 6. Second, the State specifically referred to the test results sought in paragraph 2 of the EPA subpoenas as lacking a legitimate forensic purpose. DBL submitted that the test results were also referable to a legitimate forensic purpose in connection with its claim against Bradbury for the setting aside of the notice of disclaimer. The State submitted that this category was objectionable because it would require the production of documents constituting expert evidence, and which would otherwise be inadmissible under the Evidence Act 2008 (Vic). That is not a basis to object to inspection or otherwise set aside the subpoena.
The State also contended that only documents related to Bradbury’s Brooklyn Court property, and not the remaining Bradbury sites, could be relevant to the question of legitimate forensic purpose. In this respect, the broad nature of the s 568F(1)(b) claim and the lack of complete clarity as to where the 2019 IBCs came from, provide a basis for the Associate Judge’s refusal to set aside each of the subpoenas.
Again, there is no substantial injustice to the State in allowing the order to stand for the reasons above.
Ground 6 – compliance as a basis for dismissing the objection to the FRV subpoena
The FRV subpoena is couched in wider terms than the subpoenas addressed to the VWA and the EPA.
In the Associate Judge’s reasons, the Associate Judge stated:
As to the subpoena directed to FRV, in my view the categories were too wide, but a subpoena was responded to without objection. FRV did not raise any issues about the subpoena being oppressive. As the documents have been provided, I will allow for the documents to be inspected by the plaintiff, but not until after the third defendant inspects the documents first. It has the opportunity to raise any questions in relation to privilege.
In oral submissions on the appeal, DBL contended that it was open to the court to read the reasons as referring to the categories being ‘too wide’ in the sense that their production would be oppressive, and not ‘too wide’ in the sense that the documents sought were not referable to a legitimate forensic purpose. Accordingly, DBL submits there was a basis for the Associate Judge to allow inspection insofar as FRV had produced the documents without itself complaining that the scope of the subpoena was oppressive.
I do not agree. As the transcript before the Associate Judge makes clear, and as can arguably be inferred from DBL pressing narrowed subpoenas against the VWA and the EPA, in my opinion DBL was unable to establish a legitimate forensic purpose with respect to documents relating to the White sites, nor for the wider relevant period referred to in the FRV subpoena.
As the wording of the FRV subpoenas has not been narrowed, it follows that part of the documentation produced by FRV relates to categories that are not attended by a legitimate forensic purpose.
If DBL is permitted to inspect the documents, it will benefit from the coercive powers of the Court in circumstances where it is unable to establish a legitimate forensic purpose in relation to all the documentation produced.
The Associate Judge’s reasons as to why he permitted inspection in the circumstances are brief. That is both understandable and appropriate. As noted in Oswal,[26] it is important for the efficient operation of the Court and the administration of justice that procedural applications, such as subpoenas applications, are dealt with in a timely and efficient manner. There is no need for Associate Judges to be burdened with the expectation that they must produce word perfect, lengthy and impeccable reasons in respect of every application that they hear.
[26]Oswal (no 9) [49] (Ferguson J).
Given the relatively small number of documents produced by FRV, and the fact that the State would have a first right of access to advance any claims with respect to public interest immunity, the Associate Judge declined to exercise his discretion to set aside the subpoena.
Whilst I have some misgivings about DBL obtaining access to documents that have been produced by reference to categories which do not serve any legitimate forensic purpose, I am conscious of the limited practical utility and the associated inconvenience and cost that would result if I were to make orders setting aside the Associate Judge’s orders in part, and then narrowing the scope of the FRV subpoena so as to render it in conformity with that of the EPA and the VWA subpoenas. Were I to do so, FRV which (via its solicitors) had produced subpoenaed documents without objection, would be obliged to collect the documents back from the Court, to re-examine the documents to reduce the scope of documentation produced, and then return a reduced bundle to the Court. In the particular circumstances of the case in the context of my task on appeal, this does not seem consistent with the Court’s broad powers to ensure the efficient conduct of proceedings under s 9 of the CPA. On the other hand, and given the manner in which DBL makes its case, if it is permitted inspection of the documents produced, it is likely that it will pass quickly over those irrelevant documents that relate to the White sites (to the extent to which those documents are not the subject of a public interest immunity claim or a claim for legal professional privilege).
No doubt the Associate Judge was influenced by similar considerations. In those circumstances I am not persuaded that his Honour’s exercise of discretion miscarried.
My rejection of ground 6 is also influenced by the question of substantial injustice. There is no substantial injustice to the parties for the reasons set out above.
Disposition
Accordingly, the appeal is dismissed.
Subject to any submissions that each party may wish to make in relation to costs, I will order that the third defendant pay the plaintiff’s costs of the appeal, including any reserved costs, on the standard basis.
If either party wishes to contend for any order in respect of costs, other than as proposed, that party should file and serve any affidavit material to be relied upon, together with submissions in support of the order for which the party contends (not exceeding 3 pages) by no later than 22 February 2021, with any affidavit material in response, and response submissions (not exceeding 3 pages) to be filed and served within 3 business days of receiving the other party’s affidavits and submissions.
| SCHEDULE OF PARTIES | |
| S ECI 2020 01699 | |
| DAVID BARRY LOGISTICS PTY LTD (ACN 121 644 460) | Plaintiff |
| AND | |
| GEOFFREY TRENT HANCOCK in his capacity as Liquidator of BRADBURY INDUSTRIAL SERVICES PTY LTD (In Liquidation) (ACN 121 279 847) | First Defendant |
| and | |
| BRADBURY INDUSTRIAL SERVICES PTY LTD (In Liquidation) (ACN 121 279 847) | Second Defendant |
| and | |
| THE STATE OF VICTORIA | Third Defendant |
So much was asserted (and with respect, correctly) by the State at the hearing before the Associate
Judge.
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