Azzi v Volvo

The parties' submissions and the applicable principles

1. I should refer to the parties' submissions and the applicable principles before turning to the particular subpoenas that are in issue. Felan's solicitor, Mr Fraser, refers to the observations of Brereton J in Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [23]-[25], approved by Einstein J in City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 980 at [8], that: "On the one hand, there is clearly to be recognised, the obvious danger of permitting a party by use of the subpoena procedure, to investigate issues of credit having no conceivable relevance to issues pleaded, in the sense that to permit subpoenas of that type to be called would open up matters falling outside the legitimate field of enquiry raised by the issues in contest. On the other hand, it seems to me quite clear that inspection should be granted, so far as is necessary, in the proper conduct of the litigation, where the Court forms the view that the material falls within the legitimate field of enquiry raised by the issues in contest and is reasonably likely to add in the end in some way or other to the relevant evidence in the case. The exercise … involves the need to balance these alternative considerations. The determination of the Court in the balancing exercise and in particular the proper approach to the question of relevance, requires the Court … to bear in mind the entitlement of the parties to build up what his Honour referred to as "an evidentiary mosaic". … that exercise generally cannot be done, particularly in complicated commercial litigation, by the tender of one piece of evidence or the assertion that only limited material is relevant to the issues involved. … both as to issues and as to the issue of credit, the Court should not be astute to find irrelevance at an early stage in the proceedings."
2. Several cases have recognised that subpoenas may properly be issued to support a cross-examination as to a witness's credit. For example, in Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870, Pembroke J (although setting aside the subpoena in issue) noted that the production of documents intended to be used solely to impeach a witness' credit may be a legitimate forensic purpose. His Honour pointed to the need for evidence that indicated what that legitimate forensic purpose really was and, in particular, that the credit issue should be capable of reasonable articulation, and the probable connection between the documents sought to be produced and that credit issue should be apparent. His Honour also noted the need for the Court to exercise particular caution when a subpoena is sought to be justified solely on the basis of credit and noted that the judge would need to be satisfied about the utility of production of the documents and fairness to the witness, having regard to the potential for abuse and the need to control and confine cross-examination within manageable limits. That seems to me to be a significant factor here, but it should also be recognised that the control of cross-examination would not require the exclusion of documents which might be the subject of cross-examination at the point a subpoena is issued, as distinct from the exercise of powers of a trial judge in that regard: Re Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743 at [11].
3. In Sharpe v Grobbel [2017] NSWSC 1065 at [34], Brereton J again observed that it was not necessary that a party issuing a subpoena show that it was "likely" or "on the cards" that the documents should would materially assist its case, and it need only show that the documents: "will add, in some way or another, to the relevant evidence in the case, and that rather the question is whether, on the one hand, the documents called for are apparently relevant or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of [the] subpoena, or whether on the other, they are manifestly irrelevant and incapable of touching matters of credit, in which case the subpoena would be an abuse of process." In submissions, SFM fairly acknowledged, with reference to Sharpe v Grobbel above, that a subpoena will have a legitimate forensic purpose if the documents called for are capable of providing a legitimate basis for cross-examination.
4. Felan's seeks to support the subpoenas on the basis that they go to the credit of the Defendants' witnesses, will facilitate cross-examination of the witnesses and are relevant to an "evidentiary mosaic" or the "context of the facts" pleaded in the Second Further Amended Statement of Claim. Mr Fraser submits that Felan's alleges that the Directors (or some of them) passed resolutions authorising the issue of notices to quit to Felan's, did not direct SFM to withdraw those notices to quit and did not resolve to offer Felan's a new lease, and did so for improper purposes or other than in good faith and in the best interests of SFM. Mr Fraser also submits that both Felan's and the Directors' affidavit evidence address the conduct of the parties from August 2013 until about August 2016 and the Directors' affidavit evidence outlines their reasons for the approach they adopted. Felan's seeks to support the subpoenas on the basis that they will facilitate cross-examination of the Directors as to their evidence of their purposes and as to Felan's allegation that they engaged in the conduct challenged by Felan's to reduce or eliminate support for a "Fishbank proposal" (as defined) among Buyers' shareholders. Felan's also foreshadows cross-examination in respect of a suggested agreement between SFM and BM and between AFI and BM in order to support a submission that those agreements were a reason for the challenged conduct. Felan's also supports the paragraphs as relevant to cross-examination of the Directors on their denial that SFM's management had determined not to support the Fishbank proposal by the end of 2013 and that the Directors had determined not to support that proposal by about 23 July 2014.
5. Mr Hewitt, who appears for SFM, submits that it is an abuse of process to use a subpoena for the purpose of discovery. While that proposition is well established, it does not follow that documents that are not discoverable, because they do not relate to a matter in issue in the proceedings, may not properly fall within the scope of a subpoena or notice to produce, including because of their relevance for cross-examination of a witness or credit issues. Mr Hewitt also submits that it would not be permissible to use a subpoena as a substitute for discovery that was not permitted by the Court. While I also broadly accept that proposition, it requires the qualification that there is no reason that the issue of a subpoena that sought documents that were properly the subject of production on subpoena (for example, as to credit) would not be permissible although they were not ordered to be discovered. That possibility arises because a subpoena may require production of documents that will, for example, facilitate cross-examination, even if they are not directly relevant to a matter in issue in the proceedings.
6. In the course of hearing oral submissions on 27 September 2017, and in an attempt to clarify the extent to which the matters raised by the subpoenas were relevant to cross-examination of the Directors, I directed Felan's to serve and send to my Associate a schedule ("Supplementary Schedule") identifying, in the case of each event that is the subject of a contested paragraph of a subpoena, the Directors who give evidence as to that event and the relevant paragraph number of the Director's affidavit and that the Defendants then serve and send to my Associate a schedule indicating any contest as to that information. The purpose and terms of that direction required Felan's to identify where a Director had given evidence as to a particular event as to which it sought to cross-examine that Director by reference to the documents sought to be produced by the subpoenas. Felan's adopted a very expansive view of that direction, and provided a schedule of a wide range of the evidence given by the Directors, which tended to obscure whether the Directors had in fact given evidence as to the particular matters addressed by the subpoenas. The Defendants responded to that schedule. On 2 October 2017, Felan's sent "reply" submissions in response to the Defendants' response to the Supplementary Schedule to my Chambers, without leave, which they sought in a covering email. Those reply submissions sought to elaborate on the relevance of the references provided in the Supplementary Schedule. I will grant leave for those reply submissions to ensure that the parties have a full opportunity to be heard, although they largely do not assist me where they recanvass issues that had already been addressed in the course of the hearing. I note below that Felan's reply submissions in support of paragraphs 3 and 4 of the subpoena to Buyers indicate reasons for particular caution in determining whether those paragraphs should permitted.

Subpoena to Catchers

1. I now turn to the issues raised by the particular paragraphs of the subpoenas that are in issue. Paragraph 1 of Felan's subpoena to Catchers is not pressed and should be set aside for good order's sake.
2. Paragraphs 2 and 3 of Felan's subpoena to Catchers are pressed. Those paragraphs respectively seek production of documents given or shown to directors of Catchers at a meeting on 1 May 2014 which contain information about or relating to a proposal by Fishbank Development Corporation Pty Ltd ("FDC") and by BM for redevelopment of the Sydney Fish Market site or relocation of the Sydney Fish Market facilities away from that site. This category overlaps with, but is wider than, category 19 of Felan's second discovery categories, as to which I ordered discovery.
3. Paragraph 59 of SFM's and the Directors' Defences refer to the directors' meeting of Catchers on 1 May 2014, and Mr Skepper's affidavit, on which SFM relies, refers to a letter dated 5 May 2014 from Catchers to SFM which stated that, at that meeting: "the Directors were presented with a detailed analysis of both [Felan's and BM's] proposals and developers. The meeting follows an extensive period where information was provided by both prospective developers." Mr Fraser also refers to Mr Deans' evidence, which is to be read in Felan's case, that none of FDC, Felan's or Mr Deans or anyone on their behalf was given an opportunity to present the Fishbank proposal to Catchers' board, and he did not present to the meeting. The evidence of Mr Skepper and Mr Deans is not necessarily inconsistent, since a process by which Felan's or its representatives presented its proposal to Catchers' management or its representatives and Catchers' management or its representatives presented both Felan's and BM's proposal to the board would be consistent with both accounts. Felan's also refers generally to the affidavit evidence of Messrs Symonds and Fidden led by the Directors and supports these paragraphs of the subpoena on the basis that they will facilitate the cross-examination of Messrs Symonds and Fidden.
4. In the Supplementary Schedule, Felan's also refers to evidence of Mr Symonds, who was a director of Catchers, but that evidence related to a meeting of the SFM board on 19 June 2014 rather than to the relevant meeting of the directors of Catchers on 1 May 2014. However, it does not follow from the fact that Mr Symonds did not give evidence as to that meeting, which he appears to have attended, that he cannot properly be cross-examined about it. Felan's also refers to Mr Fidden, who was a director of Catchers at the relevant time, gives evidence as to his attendance at the meeting of Catchers' directors on 1 May 2014 and also as to a stakeholders meeting on 1 May 2014 and the resolutions that were passed at that meeting. Felan's also refers to several other Directors who give evidence of attending other meetings of SFM's board, which do not support their cross-examination as to a meeting of directors of Catchers on 1 May 2014 which they did not attend, or a requirement to produce documents provided to the directors at that meeting to which they did not have access.
5. By his affidavit dated 22 September 2017, SFM's solicitor, Mr Webster, contends that any documents in answer to these categories, at least so far as they relate to SFM's involvement in the decision of the Catchers' board at the meeting on 1 May 2014, would be discovered by SFM and, if the purpose of the paragraphs is a wider purpose, then there is no allegation supporting it in the Amended Statement of Claim. Mr Hewitt submits that these paragraphs should be set aside on the grounds of lack of relevance for the reasons given in Mr Webster's affidavit.
6. These two paragraphs are relatively narrow, so far as they require production of documents made available to Catchers' directors at a single meeting. It seems to me, where the Defences and Mr Skepper's and Mr Fidden's evidence refer to that meeting, then it is potentially open to Felan's to cross-examine at least Mr Symonds, Mr Gallagher and Mr Fidden as to that meeting. This matter has sufficient evidentiary relevance that these paragraphs of the subpoena should be permitted. The fact that documents falling within these paragraphs may also be produced on discovery by SFM does not provide reason to set aside a subpoena to a third party to produce them. I would not set aside these paragraphs of the subpoena.
7. Paragraph 4 of the subpoena to Catchers was not pressed and should be set aside.
8. Paragraphs 5 and 6 of the subpoena to Catchers require it to produce letters or emails sent to its members on or after 1 May 2014 explaining decisions made at meetings on 1 May 2014 and 24 June 2015. Felan's did not previously seek discovery in these categories and supports these paragraphs as relevant to the evidentiary mosaic and as assisting in cross-examination of Messrs Symonds and Fidden in respect of paragraph 5, and at least of Mr Symonds in respect of paragraph 6. I have referred to the evidence concerning the meeting of 1 May 2014 above. In the Supplementary Schedule, Felan's refers to evidence of Mr Symonds of several board meetings of SFM before and after the meeting of 24 June 2015. Although it appears that Mr Symonds and Mr Fidden do not give evidence of that particular meeting or of information provided to members following it, it does not follow that they cannot be cross-examined about those matters.
9. Mr Webster's evidence, by way of submission, is that no allegation is made in respect of these matters in the Further Amended Statement of Claim. Mr Hewitt also submits that these paragraphs should be set aside on the grounds of lack of relevance, for the reasons given in Mr Webster's affidavit.
10. These paragraphs also require production of a narrow class of documents and the explanation of Catchers' decisions as at 1 May 2014 and 24 June 2015 given by Catchers to its members is likely to be to be relevant to the cross-examination of those directors who participated in any such decisions. While I note that these paragraphs do not have express time limits, Mr Fraser accepted in submissions that Felan's did not seek documents beyond 31 May 2014 for the former paragraph and 31 July 2015 for the latter. As Mr Fraser pointed out, it is likely that any explanation of the relevant decisions was given by Catchers to its members shortly after those decisions were made and no practical difficulty is likely to arise from the absence of a time limit in the paragraphs. I would not set aside these paragraphs of the subpoena.

Subpoena to Buyers

1. As I noted above, Felan's has advised that it does not press paragraph 1 of the subpoena to Buyers, except for requiring production of minutes of a meeting of directors of Buyers held on 24 February 2015, and SFM does not oppose that paragraph in the form now pressed. That paragraph should not be set aside, but read down in the manner agreed between the parties. Paragraph 2 of the subpoena to Buyers is not pressed and should be set aside for good order's sake.
2. Paragraph 3 of the subpoena to Buyers requires production of a legal advice obtained by Buyers or its directors, to which reference was made in a document entitled "Advice to Shareholders of [Buyers]" dated 8 August 2014 issued by Buyers' directors. Paragraph 4 of that subpoena requires production of letters or emails containing the instructions given to the solicitors who provided that advice, implicitly limited to instructions as to that particular advice. Felan's sought discovery of these documents in its first discovery categories, which failed for non-compliance with Supreme Court Equity Practice Note 11, but not in its second discovery application. Felan's supports these paragraphs on the basis that the documents sought would be relevant to its cross-examination of Messrs Poulos and Kouros, who were directors of Buyers in August 2014 and were also Buyers' nominee directors on the SFM board until about 17 March 2015 or 4 May 2015. Felan's points out that Messrs Poulos and Kouros set out their reasons for the conduct challenged by Felan's in their affidavits and that Felan's wishes to cross-examine them about their reasons for conduct anterior to that which is challenged and their continued attendance at and participation in meetings of the SFM board. Felan's also contends that legal professional privilege in that legal advice, if it was received, has been waived.
3. In the Supplementary Schedule, Felan's refers to Messrs Poulos' and Kouros' evidence as to events, but does not identify any reference in their evidence to events in August 2014 or to legal advice obtained by Buyers at that time. Felan's also refers to the evidence of Messrs Turk and Symonds and Ms Hook, none of whom was a director of Buyers, and it is not apparent why they could properly be cross-examined as to legal advice if they had not had access to it. In its reply submissions in respect of the Supplementary Schedule, Felan's submits that: "The Buyers' Board challenged the validity of a Buyers' shareholders' meeting to be held on 14 August 2014 and at which, inter alia, the Fishbank proposal was to be considered (August 2014 conduct). [Felan's] has given an account of the August 2014 conduct in its affidavit and says the August 2014 conduct is part of the evidentiary mosaic out of which these proceedings arise. The defendants, including [Messrs] Poulos and Kouros, who were Buyers' directors at that time, have not said anything in their affidavits about the August 2014 conduct. [Felan's] says that if [Felan's] is able to show by the documents subpoenaed and or by its cross-examination that the purpose of the August 2014 conduct was to frustrate the Buyers' shareholders' endeavours to have the Fishbank proposal presented and considered, then that fact is relevant to a determination of Poulos' and Kouros' credit and as to whether Poulos and Kouros genuinely engaged in the relevant conduct [as defined] for the defendants' asserted purpose/s [as defined] as each of Poulos and Kouros says he did." I treat this submission as a reason for caution in allowing these paragraphs of the subpoenas, rather than as providing any real support for them, so far as it suggests a wish to develop a range of unpleaded allegations as to events in August 2014 in Felan's case.
4. Mr Webster's evidence, by way of submission, is that the information sought in these paragraphs is not relevant to the proper determination or conduct of the proceedings and requiring Buyers to produce those documents would constitute an abuse of process. Mr Hewitt submits that these paragraphs should be set aside for lack of relevance, for the reasons given in Mr Webster's affidavit.
5. Each of those paragraphs also calls for production of a narrow class of documents, although those documents may be subject to a claim for legal professional privilege. Where the relevant advice has been referred to by Buyers' directors in providing information to its shareholders, it seems to me that it is likely to be relevant to the cross-examination of the Directors who were also directors of Buyers at that time. I recognise that there is no allegation in the proceedings in respect of the August 2014 conduct (as defined) and the proceedings are primarily directed to a challenge to conduct of SFM from 2015 onwards. However, both SFM and the Directors lead evidence of events in 2014, presumably where they consider it will advance their defence of Felan's claims. With hesitation, it seems to me that these paragraphs of the subpoena should be permitted, although it does not follow that Felan's will be permitted to advance an unpleaded case at the hearing challenging the propriety of the conduct of Messrs Poulos and Kouros, Buyers or SFM, several months prior to the events that are in issue. I will therefore not set aside these paragraphs of the subpoena to Buyers. Any question of whether any claim to legal professional privilege in the documents has been waived by the reference to them in information provided to shareholders may be addressed at the hearing.
6. Paragraphs 5 and 6 of the subpoena to Buyers require production of a copy of a legal advice received by Buyers referred to in a letter dated 16 February 2015 sent to its shareholders, signed by several of the Directors, and the instructions given to the relevant solicitors, implicitly in respect of that advice. Felan's sought discovery of these documents in its first discovery categories, which failed for non-compliance with Supreme Court Equity Practice Note 11, but not in its second discovery application. Felan's supports these paragraphs as relevant to its cross-examination of Mr Poulos and again contends that privilege in the relevant legal advice, if it was received, has been waived. In the Supplementary Schedule, Felan's refers to Mr Poulos' affidavit evidence which refers to the relevant legal advice, a matter that supports the relevance of that advice to Mr Poulos' cross-examination. Felan's also refers to Mr Kouros' evidence, which addresses the relevant period but does not appear to refer to that advice. Again, that does not preclude cross-examination of Mr Kouros as to that advice. Felan's also refers to evidence of Messrs Gallagher, Symonds, Turk and Standen and Ms Hook, none of whom were Buyers' directors, and it is not apparent why they could be cross-examined as to advice unless they had received it.
7. Mr Webster's evidence is that there is no reference to, or allegation made in respect of, a meeting of the shareholders of Buyers called for 25 February 2015 or that legal advice in Felan's Further Amended Statement of Claim. Mr Hewitt submits that these paragraphs should be set aside for lack of relevance for the reasons given in Mr Webster's affidavit.
8. Although I declined to order discovery in accordance with overlapping categories in the first discovery judgment, it seems to me likely that any such advice is relevant at least to some of the Directors' cross-examination, where the shareholders meeting of Buyers held on 25 February 2015 is arguably an anterior step to a further meeting of Buyers' shareholders held on 4 March 2015, the validity of which appears to be in issue in the proceedings, and the relevant advice has been deployed by some of them in correspondence with Buyers' shareholders. I will not set aside these paragraphs. Again, any question of whether any claim to legal professional privilege in the documents has been waived by the reference to them in information provided to shareholders may be addressed at the hearing.
9. Felan's does not press paragraph 7 of the subpoena to Buyers which should be set aside for good order's sake. SFM does not seek to set aside paragraphs 8 or 9 of the subpoena to Buyers which I need not address.

Subpoena to Savills

1. As I noted above, Felan's has advised that paragraphs 1 and 3 of the subpoena to Savills are not pressed.
2. Paragraph 2 of the subpoena to Savills, which is pressed, requires Savills to produce all letters and emails exchanged between SFM and Savills requesting or concerning a report provided by Savills dated July 2014, including certain categories of documents. Felan's sought discovery of these documents in category 4.3 of its first discovery categories which failed for non-compliance with Supreme Court Equity Practice Note 11. Felan's also sought discovery of these documents in category 10 of its second categories for discovery although this paragraph of the subpoena, because it is not limited by date, is broader than that category. I did not allow discovery of that category in paragraph 30 of my judgment delivered on 20 September 2017.
3. Felan's submits that Mr Skepper's affidavit refers to Savills' report in support of his recommendation to the SFM board that it not consider the Fishbank proposal and also refers to Mr Skepper's evidence that that report was a factor in the Directors' decision to support the BM proposal. Felan's submits that: "While the Court has determined [the] requested documents are not by themselves relevant to a fact in issue on the pleadings, [Felan's] submits that they are part of the evidentiary mosaic and wishes to cross-examine [Mr] Skepper about the evidence he gives in relation to the Savills Report at paragraphs 305 to 323 of his affidavit."
4. Mr Hewitt submits that this paragraph should be set aside for the same reason that category 10 of Felan's second categories of discovery was not permitted and for lack of relevance for the reasons given in Mr Webster's affidavit.
5. It seems to me that this paragraph should be set aside both because it seeks to obtain, by subpoena, what could not be obtained by discovery, and because it cannot be supported by a proposed cross-examination of Mr Skepper on credit grounds by reference to an unpleaded case in respect of the significance, or otherwise, of Savills' report. The subpoena to Savills should therefore be set aside in its entirety.

Subpoena to BM

1. Felan's has indicated it does not press the subpoena to BM and that subpoena should be set aside.

Subpoena to AFI

1. As I noted above, the Directors also apply, under r 33.4 of the UCPR, to set aside the whole of a subpoena dated 19 September 2017 issued to AFI. That application is supported by an affidavit of the Directors' solicitor, Mr Harding, dated 22 September 2017. Mr Harding referred to correspondence from the Directors' solicitors to Felan's solicitors that contended that the subpoena to AFI was not directed to relevant documents; that the Court had already held that any agreement between AFI and BM was not discoverable and this subpoena attempted to circumvent that determination; and that the subpoenas amounted to an abuse of process.
2. In submissions, Felan's fairly acknowledges that paragraph 1 of the subpoena to AFI seeks essentially the same documents as were sought by category 17 of its second discovery categories and recognises that discovery of those documents was not permitted. In paragraphs 35-36 of my second discovery judgment, I had observed that Felan's sought discovery of documents and communications relating to an exclusivity agreement entered into between AFI, a company associated with Mr Poulos, and BM and noted that Felan's had supported that discovery as directed to the content of any exclusive agreement between Mr Poulos and BM and as to SFM's knowledge of and any actions it took in response to such an agreement. I observed that: "There are no pleaded facts, or issues, as to the extent of or legal significance of any such interest of Mr Poulos or his associated company or SFM's knowledge of or response to it. I do not accept Mr Fraser's claim that these matters are "relevant to the issue of whether the directors of SFM were acting in good faith and in the best interests of SFM and or for a proper purpose when they passed the April 2015 Resolutions" where these matters are not pleaded."
3. Felan's nonetheless submits that production of the agreement is relevant to issues raised by the evidence given by Mr Poulos and refers to Mr Poulos' evidence as to his attitude to disclosure of interests and relationships with Mr Deans and FDL by the proposed new directors of Buyers. Felan's also points to positions and steps taken by Mr Poulos in February and March 2015 which it contends delayed a change to the Buyers' board and to Buyers' nominee directors on SFM's board. Felan's submits that AFI was then party to the agreement with BM and that it wishes to cross-examine Mr Poulos as to whether he held the claimed belief and whether his conduct was motivated by interests arising from AFI's agreement with BM. In the Supplementary Schedule, Felan's points out that Mr Poulos gives an account of events in the period from February to 19 March 2015, but does not identify any specific reference by Mr Poulos to any agreement between AFI and BM. The absence of reference by Mr Poulos to that matter does not have the effect that he cannot be cross-examined about it.
4. Mr Kidd, who appears for the Directors, refers to Azzi v Volvo [2006] NSWSC 283 at [11] which, I accept, supports his submission that it is not open to a party to subpoena a class of documents that had previously been excluded from discovery, since that would otherwise defeat the purpose of the rules in limiting discovery to specified classes. Mr Kidd also submits that a subpoena will amount to an abuse of process if the documents sought to be produced have no apparent relevance to the issues in the proceedings, where it is not shown that the documents will materially assist on an identified issue, or at least that there is a reasonable basis beyond speculation that they will assist on such an issue: ICAP Australia Pty Ltd v BGC Partners (Aust) Pty Ltd [2009] NSWCA 307 at [9], [21]-[22]. Mr Kidd submits, for the reasons given in the second discovery judgment, that the documents sought in the AFI subpoena are not relevant to the issues in the proceedings and that subpoena is being used as a substitute for an unsuccessful discovery application and to avoid the object of Supreme Court Equity Practice Note 11 and amounts to "fishing" by Felan's, and should be set aside as an abuse of process.
5. It seems to me that these matters may be relevant to Mr Poulos' cross-examination and that the subpoena for production of those documents would, had it been limited to the time period in issue in the proceedings in respect of Mr Poulos, be permitted on that basis. However, Felan's subpoena to AFI requires that it produce any agreement or agreements issued between 2014 "and the present time" concerning land at Pyrmont between AFI, BM and any related entity of BM. Even where that paragraph could be supported as relevant to cross-examination of Mr Poulos in respect of his attitude to Felan's or the Fishbank proposal, that could not extend beyond the period in which Mr Poulos was a relevant decision-maker in respect of the matters in issue in the proceedings. Mr Fraser accepted in submissions that this subpoena could not properly extend to any document dated or brought into existence after 21 May 2015, when Mr Poulos had ceased to be a director of Catchers and SFM at least by that date.
6. The subpoena to AFI should be set aside in its present form, where it is unlimited in time and extends to any agreements that might have been formed well after the matters in issue in the proceedings. That subpoena cannot simply be read down between the parties, where AFI could properly understand it to require production of documents in accordance with its terms, and it could not, or should not, have escaped Felan's attention that a category of documents that was unlimited in time could not properly be sought. I will, if asked to do so, make orders for short service of a further subpoena to AFI for production of documents within this category dated or prepared in the period to 21 May 2015.

Orders and costs

1. The Defendants seek costs of preparation of their affidavit evidence seeking to set aside the subpoenas. It seems to me that Felan's notice that it would not press several paragraphs of the subpoenas was given reasonably promptly after the subpoenas were issued, although on the day on which SFM's application to set them aside was due to be filed. I should make no order as to the costs of this application, where Felan's acted reasonably in advising the parties of those paragraphs of the subpoenas that were not pressed and did so relatively promptly after the delivery of the second judgment as to discovery, and there has otherwise been a mixed result on this application.
2. The parties should bring in agreed short minutes of order to give effect to this judgment within 2 business days. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2017