Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd

Relevant statutory provisions 8 Section 81(1) of the Bankruptcy Act provides: (1) Where a person (in this section called the relevant person) becomes a bankrupt, the Court or a Registrar may at any time (whether before or after the end of the bankruptcy), on the application of: (a) a person (in this section called a creditor) who has or had a debt provable in the bankruptcy; (b) the trustee of the relevant person's estate; or (c) the Official Receiver; summon the relevant person, or an examinable person in relation to the relevant person, for examination in relation to the bankruptcy. 9 Mr Moran is the "relevant person". Each of the other recipients is an "examinable person" in relation to Mr Moran, as defined in s 5 of the Bankruptcy Act. 10 Section 81(1B) of the Bankruptcy Act provides: (1B) A summons to a person under subsection (1) may require the person to produce at the examination books (including books of an associated entity of the relevant person) that: (a) are in the possession of the first‑mentioned person; and (b) relate to the relevant person or to any of the relevant person's examinable affairs. 11 The term "books" is defined in s 5(1) of the Bankruptcy Act so as to include "any account, deed, paper, writing or document and any record of information however compiled, recorded or stored, whether in writing, on microfilm, by electronic process or otherwise". 12 The expression "examinable affairs" is defined in s 5(1) to mean, in relation to a person (in this case, Mr Moran): (a) the person's dealings, transactions, property and affairs; and (b) the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs. 13 The expression "in the possession of" is defined in s 5(1) to include "in the custody of or under the control of". 14 The expression "associated entity" is defined in s 5(1) to mean, in relation to a person, an entity (other than a company) that is, or has been, associated with the person, or a company that is, or has been, associated with the person at a time when the company is, or was, as the case may be, a private company. The Trustee asserted that each of the companies referred to in the summonses was an associated entity of Mr Moran and Mr Moran has accepted that that is so. Ms Paterson, being Mr Moran's wife, is also an associated entity of Mr Moran. 15 Section 81(11A) also empowers a registrar to direct a person to produce at an examination books that are in the person's possession and are relevant to matters about which the person is being, or is to be, examined. Subsections (11A) and (11B) of s 81 provide: (11A) The Court, the Registrar or the magistrate may direct a person who is being examined under this section to produce at the examination specified books, or specified classes of books, that are in the possession of the person and are relevant to matters about which the person is being, or is to be, examined. (11B) Without limiting the generality of subsection (11A), a direction under that subsection may relate to books of an associated entity of the relevant person. 16 The purpose of the powers conferred by s 81 of the Bankruptcy Act is to assist trustees to gather information to enable the efficient discharge of the duties set out in s 19 of the Bankruptcy Act. Those duties extend to the discovery and realisation of property of the bankrupt's estate and other property which may be divisible among the bankrupt's creditors: see s 116. The trustee is entitled to investigate the bankrupt's conduct and examinable affairs and the books, accounts, and records kept by the bankrupt "so far as they relate to the bankruptcy": s 19AA.

Relevant principles 17 The applicable principles are not in dispute between the parties. In Karounos v Official Trustee (1988) 19 FCR 330 (Karounos) at 335 the Full Court of this Court set out the following relevant principles regarding s 81 of the Bankruptcy Act: 1. The power given by s 81 of the Act is an unusual and far-reaching one (Re North Australian Territory Company (1890) 45 Ch D 87 at 93; Ex parte Willey (1883) 23 Ch D 118 at 128) and its use could easily become oppressive and vexatious if it is not approached responsibly by applicants for summonses, and controlled carefully by the Registrar and the court: see Re Price (No 3) (1948) 14 ABC 137 at 139-140. 2. However the power is exercised in the interests of creditors, and those interests should not be defeated by an unduly technical or restrictive approach to the use of the power. The procedure is basically designed to establish what assets the bankrupt had, what has happened to those assets, and whether action should be begun (or continued) to recover them: see Re Price (No 4) (1948) 14 ABC 142 at 144; Re Andrews (1958) 18 ABC 181 at 184; Re Poulson [1976] 1 WLR 1023 at 1032; [1976] 2 All ER 1020 at 1029. … 4. The summons itself should be expressed in terms which make the intended areas of inquiry as clear as the circumstances of the case permit, and which specify as clearly as possible any books and records which the person summonsed has to produce: see Re Andrews (supra) at 186-187. 5. The Registrar should examine the application and form of summons carefully to satisfy [themselves] that the grounds of the application are sufficiently clear and the form of the summons is not oppressive or vexatious, by reason of being uncertain, too wide or otherwise objectionable. … 7. If a person summoned believes that compliance with the summons would be oppressive or vexatious, [they] can apply to the court to have the summons set aside or adjourned to a more convenient time. Such an application to the court will usually be determined on a broad view of the issues in the particular case and a weighing of competing principles: see Re Castle New Homes Ltd [1979] 1 WLR 1075; 2 All ER 775 and cases there cited; Re John Arnold's Surf Shop (supra); Re Nalanda Pty Ltd [1983] 1 Qd R 269. … 9. If such an application is made to the court by a person summoned, the court must consider afresh, on the material before it, whether the summons should be set aside or adjourned to a more convenient time. It is not merely deciding whether, on the material before the Registrar, [they] correctly exercised [their] discretion. … 18 The relevant Rules referred to in Karounos did not require the trustee to file any affidavit in support of an application seeking a summons under s 81 of the Bankruptcy Act. Under the rules that currently apply, an application for a summons under s 81 of the Bankruptcy Act must, in accordance with rule 6.06 of the Federal Court (Bankruptcy) Rules be accompanied by a draft of the proposed summons and an affidavit that, among other things, identifies the books that are to be produced; and gives details of any inquiry made by the applicant about the books to be produced and any refusal by the relevant person to cooperate with the inquiry. In the present case, none of the grounds relied upon by the recipients relates to the sufficiency of the affidavit evidence relied upon for the issue of the summons. The affidavit remains confidential, and was not before me on this application. 19 The power of the Court to issue a summons under s 81 of the Bankruptcy Act is limited to requiring the production of books that are in the possession of the recipient. This limitation must appear on the face of the summons: Re Osenton; Ex parte Osenton v Worrell (Unreported, Federal Court of Australia, 3 March 1995, BC9507765, Cooper J) (Osenton) at 36. A summons is intended to operate by reference to its terms and it is not incumbent on the recipient of a summons to read into it an implied limitation that a document be produced only if it is sensible to do so: Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore (No 2) [2019] FCA 916 (Fiore No 2) at [41]. 20 The decision of the High Court in Smorgon v Federal Commissioner of Taxation (1979) 143 CLR 499 (Smorgon) related to the power of the Commissioner of Taxation to issue a summons under s 264(1) of the Income Tax Assessment Act 1936 (Cth). Consistently with earlier decisions of this Court, the parties accepted that the principles discussed in Smorgon should be regarded as applicable to s 81 of the Bankruptcy Act: see Osenton at 36-7; Fiore (No 2) at [23]-[26]. 21 The recipients relied on the following passage from the judgment of Mason J in Smorgon (at 537-8): It is not in dispute that a notice given under par (1)(b) may validly require the production of something less than all the books, documents and other papers in the custody or control of the recipient relating to the income or assessment of the named person. It may, for example, specify particular documents. Such a notice, if correctly drawn, will make it clear that the requirement extends to the particular documents because they are included in the class of documents of which the Commissioner is authorized to require production. As the Commissioner's coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid. It will in my view conform to those limitations only if it clearly confines the documents to be produced to the class of which the Commissioner is authorized to require production, though it may go on to include particular documents on the footing that they fall within that class. If not so limited, the notice fails on its face to express the limitation which the section places on the Commissioner's authority. Because the exercise of the power casts onerous obligations on the recipient of a notice, and because the recipient (not being the taxpayer) is only justified, vis-à -vis the taxpayer, in producing the taxpayer's documents without his consent in response to a valid demand, it is for the Commissioner so to formulate his notice that this limitation on his authority is drawn to the attention of the recipient. (Emphasis added.) 22 Justice Jacobs agreed with this aspect of Mason J's reasons (at 541). To similar effect is the following passage from the judgment of Gibbs A-CJ (at 525): The next question that arises is whether the notices given to the Bank were sufficient in form. To be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind - a requirement to produce documents relating to the income or assessment of some person - and a notice requiring the production of documents not so related is beyond the scope of the power. (Emphasis added.) 23 I am required to apply the requirements as stated in Smorgon, adapted as necessary to relate them to a summons under s 81 of the Bankruptcy Act. I do not read Smorgon as requiring the recitation of the words "the bankrupt's examinable affairs" or the statutory definition of that concept, if the summons otherwise identifies a class of documents in terms that make it apparent that all of the documents must fall within the concept of the bankrupt's examinable affairs (even though the last sentence of the first paragraph in the passage from Mason J's judgment set out above could potentially be understood in that way). So, for example, a summons seeking only documents which effected a transfer of assets from the bankrupt to another entity would be permissible, because such documents would necessarily relate to the bankrupt's "dealings, transactions, property or affairs". On the other hand, the description of a class of documents, some of which may or may not fall within the concept is not authorised by s 81 (as illustrated by the description in Smorgon of documents in a particular deposit box, without any additional words restricting the class to those whose production the Commissioner was empowered to require).

The summons issued to Mr Moran 24 The summons issued to Mr Moran requires him to bring with and produce at the examination thirteen categories of "books", as follows: 1. All personal income tax returns completed and lodged with the ATO for the last 7 financial years. 2. All notices of assessment issued by the ATO for the last 7 financial years. 3. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence your income for the past 7 financial years including any PAYG summaries, income statement, payslip, invoices and bank account statements recording receipt of the income. 4. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence: (a) any contract or agreement between any of: (i) you; (ii) MetalsTech Limited ACN 612 100 464 (MetalsTech) (iii) Talos Mining Pty Ltd (in Liquidation) ACN 161 558 158 (Talos) in its own right or as trustee of the Talos Mining Trust; (iv) Minco Holdings Pty Ltd (in Liquidation) ACN 137 336 808 (Minco); (v) Fiona Marisa Paterson; (vi) Natres Services Pty Ltd ACN 631 022 510 (Natres Services); (vii) Courchevel 1850 Pty Ltd ACN 633 457 502 (Courchevel); (viii) Lithium Springs Ltd ACN 623 916 012 (Lithium Springs); (ix) Oceanic Dental Pty Ltd ACN 600 784 665 (Oceanic Dental); in respect to the provision of personal services by you. (b) any benefits paid by any of MetalsTech, Talos, Minco, Natres Services, Courchevel, Lithium Springs, Oceanic Dental (whether monetary or otherwise including any payments of salaries/wages, any other employee benefits, any director related payments and any allotment or transfer of shares; performance rights and options) to you. (c) any benefit paid by any of MetalsTech, Talos, Minco, Natres Services, Courchevel, Lithium Springs, Oceanic Dental (whether monetary or otherwise including any payments of salaries/wages, any other employee benefits, any director related payments and any allotment or transfer of shares; performance rights and options) to a third party in relation to personal services provided by you (whether as employee or in any other capacity). 5. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence your appointment and resignation as director of MetalsTech, Talos, Minco, Natres Services, Courchevel, Lithium Springs, Oceanic Dental. 6. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any allotment, disposal or transfer of shares, performance rights and options in MetalsTech, Lithium Springs, Oceanic Dental and Natres Services by any of MetalsTech, Lithium Springs, Oceanic Dental, Natres Services, Russell Harold Moran, Talos and Minco to any of Fiona Marisa Paterson, Natres Services and Courchevel. 7. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any distributions received by you as shareholder of any company or beneficiary under any trust. 8. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any contract or agreement between any of MetalsTech, Russell Harold Moran, Talos, Minco, Natres Services, Courchevel or Fiona Marisa Paterson in relation to any facilitation agreement with MetalsTech (including any termination and release of such agreement). 9. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any financing, disposal, purchase or other dealings involving the property or assets of Russell Harold Moran, Talos, Minco. 10. All books, documents, records and accounts (however compiled, recorded or stored) that record or evidence contributions towards the purchase price, ongoing mortgage repayments, repairs and maintenance of the following properties: (a) [an address in] Shenton Park WA 6008; (b) [an address in] Peppermint Grove; and (c) [another address in] Shenton Park WA 6008.; 11. All documents in your possession in relation to: (a) the Federal Court of Australia - Western Australia Registry proceedings number WAD 107/2021. (b) Supreme Court of Western Australia Proceeding CIV 3185 of 2016; (c) Court of Appeals Proceeding CACV 21 of 2020; including those documents which shows [sic] the amount of legal fees incurred in those matters. 12. All documents passing between you and the ATO in respect of your Income Tax Running Balance Account Debt. 13. All books, documents, records and accounts (however complied [sic], recorded or stored) evidencing any costs, expenses, fees, liability that a third party had paid for on your behalf for the past 7 financial years.

The summonses issued to the other recipients 25 The summons issued to Ms Paterson sought the following categories of documents: 1. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence: (a) any contract or agreement entered into by you with any third party in relation to or under which personal services were provided by Russell Harold Moran. (b) any benefit received by you (whether monetary or otherwise including any payments of salaries/wages, any other employee benefits, any director related payments and any allotment or transfer of shares; performance rights and options) from a third party in relation to personal services provided by Russell Harold Moran (whether as employee or in any other capacity). 2. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any payment (including for any costs, expenses, fees and liabilities) made by you to Russell Harold Moran or to any third party for or on his behalf. 3. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any allotment, disposal or transfer of shares, performance rights and options in MetalsTech Limited ACN 612 100 464 (MetalsTech) by any of MetalsTech, Russell Harold Moran and Talos Mining Pty Ltd (in Liquidation) ACN 161 558 158 (Talos) in its own right or as trustee of the Talos Mining Trust to you. 4. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any contract or agreement between any of MetalsTech, Russell Harold Moran, Talos, and Minco Holdings Pty Ltd (in Liquidation) ACN 137 336 808 (Minco) Natres Services, Courchevel or you in relation to any facilitation agreement with MetalsTech (including any termination and release of such agreement). 5. All books, documents, records and accounts (however complied [sic], recorded or stored) that record or evidence any financing, disposal, purchase or other dealings involving your property or assets with any of Russell Harold Moran, Talos, Minco, MetalsTech, Lithium Springs Ltd ACN 623 916 012 (Lithium Springs) and Oceanic Dental Pty Ltd ACN 600 784 665 (Oceanic Dental). 6. All books, documents, records and accounts (however compiled, recorded or stored) that record or evidence contributions towards the purchase price, ongoing mortgage repayments, repairs and maintenance of the following properties: (a) [an address in] Shenton Park WA 6008; (b) [an address in] Peppermint Grove; and (c) [another address in] Shenton Park WA 6008. 26 The summonses issued to the other three recipients sought categories of documents described in similar, though not identical, terms. It is not necessary to set all of them out. There was no equivalent in the other summonses to item 6 of the summons issued to Ms Paterson.

The Additional Orders of the registrar requiring Ms Paterson and Ms Stevenson to produce documents 27 In addition to ordering that the summonses be issued to each of the recipients, on 1 May 2024 the registrar also made the Additional Orders pursuant to s 81(11A), which directed that: (a) Ms Paterson, in her capacity as the proper officer of Natres Services Pty Ltd, produce documents set out in schedule 1 to the registrar's orders; (b) Ms Paterson, in her capacity as the proper officer of Courchevel 1850 Pty Ltd, produce documents set out in schedule 2 to the registrar's orders; and (c) Ms Stevenson, in her capacity as the proper officer of Lithium Springs Ltd, produce documents set out in schedule 3 to the registrar's orders. 28 The Additional Orders were not the subject of detailed submissions before me. In the submissions filed by the recipients other than Mr Moran, it was submitted that, if the Court determined to that the summonses should be set aside, then it would follow that the Additional Orders made under s 81(11A) should also be set aside. That submission was not further developed. The submissions of the Trustee did not specifically address the question of whether the Additional Orders (as opposed to the summonses) should be set aside. 29 The Additional Orders are expressed in terms that are similar to those parts of the summonses that require the recipients to produce documents. Several of the complaints relied upon by the recipients in relation to the requirements of the summonses are also equally applicable to the Additional Orders. I shall consider what should be done about the Additional Orders after addressing the substance of the complaints made in relation to the summonses.

Grounds on which the summonses are said to be objectionable

Failure of each of the summonses to specify that the requirement to produce books is limited to books in the possession of the person to whom the summons is addressed 30 Each of the recipients complains that the summons issued to them was not authorised by s 81 of the Bankruptcy Act, and is invalid, on the ground that the books described in the summons are not limited to books in the possession of the person to whom the summons is addressed (in the relevant defined sense). Read literally, the summonses require production of books falling within the categories whether or not they are in the possession or control of the person summonsed. 31 In the case of the recipients other than Mr Moran, this complaint applies to all of the categories of documents sought. 32 In the case of the summons issued to Mr Moran, this complaint applies to all of the categories of documents except those described in item 11. The fact that item 11 was expressly confined to documents in Mr Moran's possession tends to confirm that it is not possible as a matter of construction to "read in" an equivalent limitation as implicit in the other paragraphs. 33 In any case, it is well established that, in order to be valid, a summons must describe the categories of documents sought in terms that expressly reflect the limits of the authority conferred by s 81. In particular, it is necessary to state that the documents sought be expressly limited to documents in the possession (in the defined sense) of the recipient: Osenton at 36. It is in the first instance the responsibility of a trustee who applies for the issue of a summons to draft the summons in terms that observe the limits imposed by s 81. 34 The Trustee accepts that the summonses are defective (apart from item 11 in the summons to Mr Moran) and invalid, on the basis that the descriptions of the documents sought are not confined to documents in the possession (in the defined sense) of the recipients of the summonses. The Trustee first acknowledged this in its written submissions filed on 9 September 2024. The position expressed by the Trustee in those written submissions was that this was the only basis on which she accepted that the summonses were invalid; that the summonses were not in any respect oppressive; and the Court should deal with this defect by amending each summons to include words such as "in your possession" (or similar). That was the course taken by Cooper J in Osenton. I shall address this issue below after considering the other objections to the summonses.

Descriptions of classes of documents sought from Mr Moran said not to be limited to the examinable affairs of Mr Moran 35 Mr Moran submitted that the summons issued to him was invalid insofar as it required him to produce the documents described in items 1, 2, 10 and 11, because those paragraphs were cast in terms that had no necessary connection with his "examinable affairs". 36 In connection with this submission, the Trustee submitted: [U]nder the Act, Mr Moran's property vests in [the Trustee], subject to certain exemptions. That property includes the bankrupt's books and records. There are limited bases upon which Mr Moran may refuse to give [the Trustee] books and records that he owned, which now are either owned by [the Trustee] or which [the Trustee] has a duty to take possession of [citing Griffin v Pantzer (as trustee of the bankrupt estate of Griffin) (2004) 137 FCR 209; [2004] FCAFC 11 at [175]-[176]. (Citations omitted.) 37 That is correct as far as it goes. However, a person may have possession of books and records that are not owned by them. The categories of documents the subject of this complaint are not limited in their terms to books that are owned by Mr Moran, including books which may not be evidence of their examinable affairs. (Nor is the authority conferred by s 81 limited to books owned by a bankrupt, so the terms of s 81 itself provide no obvious basis for "reading in" any limitation of that kind where it does not appear on the face of the summons, even if that were permissible.) What the summons to Mr Moran requires him to produce can only be ascertained as a matter of construction of the words of the summons. That is not to say that the language in a summons must be completely free of ambiguity of a kind that can reasonably be resolved by a process of interpretation of language. However, the construction of a summons is not to be approached by reading in additional limitations that do not appear on the face of the summons: Fiore (No 2) at [41]. 38 In relation to the classes of documents identified in items 1 and 2 of the summons to Mr Moran, the Trustee initially submitted in writing that the intention was to limit the class to income tax returns or notices of assessment in Mr Moran's possession and that, so construed (or amended), "the required connection between the documents required to be produced by items 1 and 2 and Mr Moran or his examinable affairs appears on the face of the summons". In oral submissions, the Trustee refined that submission, arguing that the class should be understood as limited to personal income tax returns relating to Mr Moran and notices of assessment issued to Mr Moran by the Australian Taxation Office. That is, it was submitted that the category should be construed as limited to tax documents relating to Mr Moran's own personal tax affairs, those being documents that would relate to the examinable affairs of the bankrupt. The Trustee relied on the observations of Jackson J in Fiore (No 2) (at [73]) that the bankrupt is in a different position to a third party who receives a summons. I accept that that is true and that sometimes what is unclear to a third party may be clear enough to a bankrupt because of their knowledge their own affairs. However, in the case of items 1 and 2 of the summons to Mr Moran, it is not apparent from the description that the documents sought were necessarily intended to relate only to Mr Moran's personal tax affairs and to the exclusion of, for example, income tax returns of his wife and notices of assessment issued to companies which he may have controlled. 39 Item 10 of the summons issued to Mr Moran requires the production of all books that "record or evidence contributions towards the purchase price, ongoing mortgage repayments, repairs and maintenance" of three specified properties. In terms, the category does not relate only to contributions made by Mr Moran. The Trustee submitted that item 10 should be construed as if it read "contributions by Mr Moran to …", but it does not appear to me that that limitation can be read in, having regard to the language actually used. The category as described is not limited in a way that would confine it to matters relating to Mr Moran's examinable affairs (although a category limited to reflect the Trustee's suggested construction would be). 40 The effect of serving a summons on Mr Moran is to impose an obligation on him with which he is ostensibly bound to comply on pain of contempt of court. Where the class of documents is not limited by the use of the words "relating to the bankrupt's examinable affairs" or by some other criterion that creates the necessary link to the bankrupt's examinable affairs, the apparent legal effect of the summons is to impose on Mr Moran a legal obligation that is not authorised by s 81. 41 Item 11 of the summons to Mr Moran requires him to produce documents relating to three identified court proceedings. Mr Moran was a party to each of those proceedings. I do not accept Mr Moran's submission that documents in his possession which relate to those proceedings are outside the statutory concept of the bankrupt's examinable affairs, bearing in mind that the concept includes "the person's dealings, transactions, property and affairs". I return to the question of whether item 11 is objectionable for a different reason at [60]-[63] below.

Descriptions of classes of documents sought from the other recipients not limited to examinable affairs of Mr Moran 42 The recipients other than Mr Moran submitted, by reference to the items listed in the summons to Ms Paterson (most of which were similar to equivalent items appearing in the summonses to the other three recipients), that the classes of documents identified in the summonses to them were not described in a manner that made plain on the face of the summons that they were within the class of documents which s 81 entitled the trustee to require be produced. The recipients relied upon the passages from Smorgon set out at [21]-[22] above. 43 The Trustee submitted that the necessary connection with the bankrupt's examinable affairs did appear on the face of the summonses, pointing to the fact that each summons states: You are required to attend before the Federal Court of Australia to give evidence in relation to the examinable affairs of Russell Harold Moran. 44 However, those statements relate to the requirement that the recipient of the summons attend for examination. The summonses do not state in terms that the documents required to be produced are limited to those which relate to Mr Moran's examinable affairs: cf Fiore (No 2) at [27]. 45 The Trustee also submitted that, because the documents sought were those relating to or evidencing certain kinds of transactions between various entities that were all associated entities of Mr Moran, each of them necessarily related to Mr Moran or his examinable affairs. I understood the Trustee to submit that any dealing between an associated entity of Mr Moran and another associated entity of his would relate to Mr Moran or his examinable affairs. But that is not necessarily so: the dealings of associated entities are part of a bankrupt's examinable affairs only "in so far as they are, or appear to be, relevant to the [bankrupt] or to any of his or her conduct, dealings, transactions, property and affairs": Bankruptcy Act, s 5(1), definition of "examinable affairs". 46 I accept the recipients' submissions that each of the items in the summonses issued to the recipients does not comply with the requirements of a notice under s 81 insofar as it relates to transactions to which Mr Moran himself was not a party. The summonses do not state on their face that all the documents in the class described relate to Mr Moran's examinable affairs, and the descriptions of the documents sought are not such that all documents falling within them must necessarily fall within that class. There is nothing on the face of the summonses to limit the documents to documents relating to the examinable affairs of Mr Moran or to inform the recipients of that limit on the authority of the trustee to require the production of documents. 47 Item 6 of the summons issued to Ms Paterson is similar to item 10 of the summons issued to Mr Moran (addressed at [39] above). The Trustee submitted that it was intended to refer to contributions to the purchase price by Mr Moran. However, there is nothing in the language used in the summons that confines it in that way. The connection with the affairs of the bankrupt is not apparent on the face of item 6 and it is not authorised by s 81 for this reason also.

Descriptions of classes of documents not limited as to date or value 48 The recipients complain that many of the paragraphs of the summonses describe categories of documents in terms that include no temporal limits. They submit that a summons to produce documents will be oppressive if the categories of documents sought are not limited as to date. 49 It is not a universal principle that a summons will be always oppressive if it is not limited as to date. Whether it is will depend upon the issues which the trustee seeks to investigate, and the extent to which the description of the documents otherwise confines the class: see, eg, Fiore (No 2) at [76]. In some cases, it will be apparent that a description of documents that is not limited as to date has the result that the class of documents extends to documents that could not possibly be within the scope contemplated by s 81, or which is oppressive because it requires a search for documents that, although relating to a bankrupt, could not possibly bear on the investigation of their examinable affairs: see, eg, Fiore (No 2) at [40]-[41]. 50 In other cases, however, all documents in the class will be relevant to the examinable affairs of the bankruptcy and the issues the trustee is investigating, even though no express temporal limitation is included in the description. For example, documents relating to the financial affairs of a particular single-member company that was incorporated by the bankrupt only recently may all relate to the bankrupt's examinable affairs, notwithstanding the absence of any reference to dates in the description of the class of documents. 51 Given that there is no evidence before the Court as to the date of incorporation of any of the companies referred to in the summonses, or about the relationship of Mr Moran to their affairs, it is not possible for me to determine whether the general failure to confine the categories of documents by reference to a date range is oppressive. It is not possible to tell what period of time the documents sought might relate to. I would not, therefore, uphold the recipients' general complaint that the categories based on the failure of the summonses to limit the documents by reference to date ranges. Unlike the requirement that the limits on the authority conferred by s 81 must be reflected on the face of a summons in the description of documents sought, there is no requirement that it must appear from the face of a summons that the summons is not oppressive; that is generally a matter to be established by evidence and the person seeking to set aside the summons bears the onus of proof. 52 That said, there are several distinct categories of documents in respect of which, despite the paucity of evidence before me, it can be concluded that the failure to identify a temporal limit on the transactions to which the documents relate results in the category extending beyond what is justified by the proper purpose of summonses under s 81. 53 Mr Moran singled out items 7 and 9 of the summons issued to him, submitting: For example, item 9 requires the production of books that record or evidence "any financing, disposal, purchase or other dealings involving the property or assets of [Mr Moran]" at any time. This item would require Mr Moran to produce books relating to the purchase and possible sale of his first bike, his first car, his first wristwatch, and first computer. Similarly, item 7 requires the production of books that record or evidence any distribution received by Mr Moran as a shareholder of any company or beneficiary of any trust at any time. If, hypothetically, Mr Moran had received a distribution from his parents' family trust for his care, education or maintenance while he was a child, item 7 would require him to produce books relevant to that distribution. 54 I accept that the description of these categories themselves is so broad that they would include documents of the kinds identified in this submission (or, if the summonses were amended to refer to documents in the possession of Mr Moran, to any such documents in his possession). The summons would require him to satisfy himself whether he does or not, as well as producing any such documents that do exist. The descriptions of the documents in these two categories are such that it may naturally be inferred that Mr Moran would need to make a very wide-ranging search before he would be able to be sure that he does not have documents in those categories in his possession; and he would be required to produce any documents within the categories even though some of them may well have no relevance to any proper investigation being undertaken by the Trustee. Even though the categories of documents identified in items 7 and 9 are within "the bankrupt's examinable affairs" as defined, I accept Mr Moran's submission that those two items, as drafted, are oppressive. 55 Mr Moran also separately complains that some of the categories of documents the summons are oppressive because they relate to transactions but are not limited as to value. He submits, for example that: (a) item 9 would require Mr Moran to produce every receipt for any item of clothing, trinket, and tool he has ever purchased; (b) item 10 would require Mr Moran to produce every invoice from every tradesperson who has ever provided services in respect of the identified properties, every receipt for every lightbulb, and every rates notice ever issued; and (c) item 13 would require Mr Moran to produce every receipt for any meal that a member of his family has bought for him and every text message to a friend requesting that they buy him a coffee. 56 I accept that the identification of these particular categories in broad terms without some kind of further limitation, whether by date, value or additional description, has resulted in a summons that does (or would, if it were valid) require Mr Moran to produce books of the kind he has identified, if they exist. I accept that a summons requiring him to produce all such documents in his possession (and, correspondingly, to ensure that he has not overlooked finding and producing any such document) is oppressive. The efforts required to ensure compliance with the summons as drafted would be disproportionate to any benefit from requiring Mr Moran to ensure that he had identified and produced all documents in these categories. In relation to item 10, I accept Mr Moran's submission only insofar as it relates to "repairs and maintenance" of properties (as opposed to purchase price and mortgage repayments). 57 I also accept the submission of Ms Paterson that, for essentially the same reasons, items 2 and 5 in the summons to her are oppressive, taking into account that she is Mr Moran's spouse and that she has known him since around 2000. The same is true of item 6 only insofar as it relates to repairs and maintenance of properties (as opposed to purchase price and mortgage repayments). 58 In relation to items 7, 9, 10 and 13 of the Summons to Mr Moran and items 2, 5 and 6 of the summons to Ms Paterson, the categories could be narrowed in various ways so that they are not oppressive. The specification of a date range or minimum value (or both) would be one way in which that could be achieved but it would not be the only possible way. 59 To the extent that Ms Paterson and the other recipients submitted that other items in the summonses issued to them were oppressive, that is not a conclusion I am prepared to reach on the basis of the limited evidence before me, including the absence of any evidence as to the nature of the investigations the Trustee is seeking to undertake or the evidence that was advanced in support of the issue of the summonses.

Category of documents largely to be covered by legal professional privilege 60 Item 11 of the summons issued to Mr Moran seeks the production of documents relating to three identified court proceedings to which Mr Moran was a party. He was represented in at least two of the three proceedings identified in item 11. There is no evidence before me about the nature of that litigation. Mr Moran points out that the category of documents defined by item 11 would include all communications relating to the identified litigation, including instructions provided by Mr Moran to, and legal advice received by him from, his lawyers, and all documents prepared for the purpose of the proceedings, including drafts of court documents and proofs of evidence, irrespective of whether those documents were filed in Court or relied upon in the proceedings. 61 It was not disputed that s 81 does not override legal professional privilege and that the summons would not require the ultimate production of documents that are the subject of legal professional privilege. Nor was there any suggestion that Mr Moran personally was unable to claim privilege in relation to documents relating to the litigation identified in item 11, including as against his trustee in bankruptcy. I understood the parties to accept that an appropriate procedure to comply with the summons would be for Mr Moran to identify to the Trustee any documents falling within item 11 in respect of which he claimed the privilege. 62 The issue is whether the summons is oppressive in its operation insofar as it requires production of a class of documents that can be expected to include a great deal of privileged material. I accept Mr Moran's submission that it is oppressive as it will require him unnecessarily to identify every document in his possession relating to the litigation, including documents that are undoubtedly privileged, and to make claims of privilege over such documents. 63 It should be possible positively to describe categories of documents that would result in the production of virtually all of the kinds of documents the Trustee could reasonably expect to provide evidence relevant to her investigation, while avoiding requiring the identification and claiming of privilege over a great many documents. Examples of categories of documents of that kind might include, for example, the transcript of proceedings and all documents admitted into evidence in the proceedings. In requiring Mr Moran to produce all documents in a wide category many of which are likely to be subject to legal professional privilege, the summons would put Mr Moran to a cost that is disproportionate to the object served by the summons. 64 To be clear, I do not consider that it is objectionable or oppressive for a summons to seek a class of documents merely because some of them may, or will, be covered by legal professional privilege; the oppression lies in defining a category that, of its very nature, is likely to capture a great many privileged documents, in circumstances where a more narrowly described category (or categories) could be stated which would largely or wholly achieve the Trustee's purpose, without putting Mr Moran to the time and possible expense of making and justifying claims of legal professional privilege. For example, I do not consider that it would be oppressive for a summons to require Mr Moran to produce all documents in his possession that record the value of legal services provided to him by his lawyers in relation to the three proceedings, even though that category might well include some communications which are subject in whole or part to legal professional privilege.

Descriptions of documents by reference to what they "evidence" 65 I accept that, generally speaking, it is undesirable that summonses should be issued in terms that require the recipient of the summons to assess whether they "evidence" particular transactions or facts: see Shangri-La Constructions Pty Ltd v Hyatt, in the matter of GVE Hampton Pty Ltd (in liq) [2020] FCA 1577 at [126] and [129]; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [138]. To describe documents in that way requires the recipient of a summons not merely to make a factual judgement by reference to the content of each document but to make an assessment of the capacity of the content of a document to be probative of a particular fact; an assessment that can only sensibly be made in light of an understanding of other evidence. Moreover, the degree of relevance necessary before a document can be said to evidence a fact is uncertain. 66 That is not necessarily to say that it can never be permissible to describe a category of documents to be produced by reference to what they evidence. It is possible, for example, that in the circumstances of a particular case, a description of documents as "evidencing" a particular identifiable transaction may be sufficiently confined that it is not oppressive to require the recipient of a summons to make that judgement, especially if the recipient is someone familiar with the particular transaction or if the documents evidencing the transaction are likely to be easily exhaustively identifiable. However, in these summonses, each description of what the produceable documents are to "evidence" is itself very broad. 67 I accept the recipients' submissions that the summonses are objectionable insofar as they require the recipients to make an assessment as to whether documents evidence particular facts. I accept that items 3-10 and 13 in the summons issued to Mr Moran, and all of the items in the summonses issued to the other recipients, are objectionable on this basis.

Category of documents said to be unclear 68 The summonses issued to the recipients other than Mr Moran each contained an item in terms similar to item 5 in the summons to Ms Paterson (set out at [25] above). The recipients submitted that the category was "completely unclear as to what it means", and that the recipients should not be left to guess about what was intended. I accept that the words "any financing, disposal, purchase or other dealings involving your property or assets with any of Russell Harold Moran, Talos, Minco, MetalsTech, Lithium Springs Ltd ACN 623 916 012 … and Oceanic Dental Pty Ltd ACN 600 784 665" are somewhat ungrammatical - principally because the preposition "with" and the verb "involving" do not sit comfortably with the verbs "financing", "disposal" and "purchase" as a matter of ordinary English usage. The issue has evidently arisen because the drafter, in pursuit of economy of expression, has referred to three specific kinds of dealings in a single sentence, as well as the general expression "any other dealings". However, item 5 in the summons to Ms Paterson (and the comparable items in the other summonses) is capable of being given sensible and sufficiently clear meaning as a matter of interpretation or construction. 69 The passage I have quoted above is to be understood distributively, as if it read: (a) any financing of your property or assets by any of Russell Harold Moran, Talos, Minco, MetalsTech, Lithium Springs Ltd ACN 623 916 012 … and Oceanic Dental Pty Ltd ACN 600 784 665; (b) any disposal of your property or assets to any of Russell Harold Moran, Talos, Minco, MetalsTech, Lithium Springs Ltd ACN 623 916 012 … and Oceanic Dental Pty Ltd ACN 600 784 665; (c) any purchase of your property or assets by any of Russell Harold Moran, Talos, Minco, MetalsTech, Lithium Springs Ltd ACN 623 916 012 … and Oceanic Dental Pty Ltd ACN 600 784 665; and (d) any other dealings involving your property or assets with any of Russell Harold Moran, Talos, Minco, MetalsTech, Lithium Springs Ltd ACN 623 916 012 … and Oceanic Dental Pty Ltd ACN 600 784 665. 70 I do not accept that item 5 of the summons to Ms Paterson or the comparable items in the other summonses are oppressive or invalid by reason of unacceptable ambiguity.

The power to set aside or amend a summons 71 The Trustee submitted that, rather than setting aside or discharging the summonses, the Court should "amend" the summonses in the various ways already identified above, in order to limit their effect to what is authorised by s 81 of the Bankruptcy Act and in order to limit their scope expressly so that they are not oppressive. The recipients other than Mr Moran contended that the Trustee had not identified any source of power to amend a summons and that the Court should not conclude that it has the power to do so. 72 What does it mean for the Court to "amend" a summons? A summons is a document that is served on a person. The service of the summons has certain legal consequences, which are defined by s 81 of the Bankruptcy Act. Those legal consequences are defined in part by reference to the content of the summons. An order of the Court that a summons be amended cannot change the actual content of the particular document, which will have already been served on the recipient. For the Court to order that a summons be "amended" must therefore be, in effect, to order that the legal effect of the service of the document on the recipient that has already occurred is to be taken to be altered. It is to order, in effect, that the document is to be taken to have a different content from that which it has in fact. The substantive effect is to subject the recipient of the document to a different set of legal obligations in lieu of those (if any) which would have applied by operation of the Bankruptcy Act, and to declare that the Bankruptcy Act provisions are to be treated as applying as if the documents contained the varied terms described in the Court's order. In the case of a summons that was invalid when served because it went beyond what was authorised by s 81, an order amending the summons would have the effect of imposing obligations on the recipient when the summons itself was not legally effective to do so. 73 I incline to the view that the Court has the power to make orders which have this effect, which can be described by the shorthand of "amending" a summons. By s 23 of the Federal Court of Australia Act 1976 (Cth) the Court is given a broad "power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, … as the Court thinks appropriate". In any event, in Osenton, Cooper J held, and did not merely assume, that the Court had the power to amend a summons: see also Fiore (No 2) at [78]. I consider that I should follow that decision. I proceed on the basis that I do have the power to make an order of the kind I have described. The power is discretionary.

Consideration of the discretion to set aside or amend the summonses 74 I did not understand there to be any dispute between the parties that, in deciding whether to discharge a summons, the Court exercises a discretion which requires it to weigh the interests of: (a) creditors in discovering what assets the bankrupt had, what became of them, and whether action should be taken to recover them; (b) creditors in not having the bankrupt estate needlessly diminished by the issue of summonses for examination which are too broad; (c) recipients of the summons (including the bankrupt) in ensuring that the use of the extraordinary power does not unnecessarily cause them "real harm"; and (d) the administration of justice in ensuring that the extraordinary power is responsibly exercised, only when necessary, and only so far is as necessary, to achieve the purpose for which the power is conferred. 75 Given that the summonses are at least substantially invalid, they should not be allowed to stand in their current form. The discretion to be exercised is as between setting aside or discharging the summonses, and ordering that they be "amended" in the sense I have described above. 76 One consideration that weighs in favour of discharging the summonses and against amending them in the present case is that, in light of my conclusions at [30]-[67] above, there are a number of respects in which I consider the requirements of the summonses as presently drafted to be beyond the scope of what is authorised by s 81 of the Bankruptcy Act (and, in some instances, oppressive). All of the categories of documents in all the summonses are affected. Amendment of each of the summonses to address those issues would not merely involve the insertion of a simple textual formula limiting the documents sought to those in the possession of the person to whom the summons is addressed; it would involve the Court effectively redrafting several paragraphs of each of the summonses. That is not a task that would necessarily be impossible in this case, but it is a task that is most appropriately undertaken by the Trustee. It would involve choices that may be informed by what is known to the Trustee but is not before this Court. 77 If the summonses were set aside in their entirety, it would be open to the Trustee to issue fresh summonses which are valid and which seek categories of documents described or limited so as to avoid the features which I have found to be oppressive. I accept that, if I were to make an order setting aside the summonses rather than "amending" them, and assuming the Trustee did then issue fresh summonses, that would likely result in some further delay in the administration of the bankruptcy compared with the making of an order amending the summonses. I accept that any such delay may generally be assumed to be to the prejudice of creditors. However, there was no submission as to, or evidence of, any particular prejudice to the creditors that would be occasioned by a short further delay in the event that the summonses were set aside and the Trustee elected to issue fresh summonses. Moreover, the Trustee has accepted since at least 9 September 2024 (and must have realised earlier than that, this ground of objection having been identified by the recipients in documents filed in May 2024) that each of the summonses was invalid due to its failure to confine the categories of documents sought to documents in the possession of the person summonsed. The delay could have been avoided almost entirely had the Trustee (or her predecessor) elected not to rely upon the summonses and instead issued fresh summonses after the defects in the summonses were identified. The additional costs of issuing further summonses would have been modest compared with the costs of the contested hearing that has occurred. In these circumstances, in the exercise of the discretion I give only relatively slight weight to the impact of delay on the interests of the creditors in the efficient administration of this bankruptcy. 78 Conscious that I have not heard from the former trustee on this application, I accept that submission of the recipients that the excess of power in this case is suggestive of there having been no real attempt to ensure that he gave effect to the relevant principles and to keep the summonses within proper bounds. I also accept that it is relevant that the applicable principles generally are not in doubt and at least some of the deficiencies of the summonses could easily have been avoided had the former trustee familiarised himself with them. 79 The recipients submit that trustees should not be encouraged to proceed on the basis that they may issue summonses which exceed the limits of the power conferred by s 81, or which are cast in terms that are oppressive, on the assumption that the Court will be prepared to amend them later. In my view there is some force in this submission. If trustees do not adopt a careful approach to the drafting of summonses, and issue summonses which are beyond the authority conferred by s 81, the practical effect will be to place a burden on the recipient of a summons to apply to have it set aside, to comply with a purported obligation that is not actually binding on them, or to risk being found to be in contempt if they refuse to comply with the summons. In exercising my discretion, I bear in mind the nature and function of the summons as a document that is served on a person, which is intended to define for that person the legal obligations that apply to them and to enable them to ascertain the true limits of the statutory obligations to which it causes them to be subject. The efficient achievement of the objects of the Bankruptcy Act are served by trustees habitually taking care to ensure that the action they take in the interests of creditors is limited to what is lawfully authorised. This is a background consideration which does not, of course, dictate that the Court should favour discharging a summons over amending it in every case. 80 Weighing up these considerations and all the circumstances insofar as they are known to me, I have concluded that, in the present case, the discretion should be exercised by discharging the summonses insofar as they require the production of documents, rather than ordering that the summonses be amended.

The requirement in each summons that the recipient attend for examination 81 The Trustee submitted that the issues raised in relation to the summonses all concerned the requirements that the recipients produce documents. They did not affect the validity of the summonses insofar as the required the recipients to attend for examination. I accept that the obligations to attend for examination are distinct from the obligations to produce documents and the summonses are valid insofar as they require the recipients to attend for examination. In those circumstances, given that the Trustee has indicated that she may wish to proceed with examinations even if the documents have not been produced, I will only discharge the summonses insofar as they require the persons to whom they are addressed to produced documents. 82 As I have noted above, had the summonses been set aside in their entirety, it would have been open to the Trustees to issue fresh summonses requiring the production of documents in terms that observe the limits imposed by s 81(1B) and the principles to which I have referred. Since, in accordance with the position taken by the Trustee, I have only set aside the summonses insofar as they seek the production of documents, and not insofar as they require the recipients to attend for examination, the original summonses remain in existence to that extent, and it would not be appropriate to issue fresh summonses to the recipients. However, if the Trustee still wishes to require the recipients to produce documents at the examinations, the appropriate course now would seem to be for the Trustee to apply for orders under s 81(11A). If the Trustee were now to apply for orders under s 81(11A) that were carefully drafted in such a way as to comply with the principles discussed in these reasons, it would be appropriate for a registrar to make those orders. It is a matter for the Trustee to decide whether to make such an application and to draft the orders sought appropriately in the first instance.

The additional orders requiring production of documents by Ms Paterson and Ms Stevenson 83 Finally, I turn to consider the Additional Orders that were made by the registrar, requiring each of Ms Paterson and Ms Stevenson to produce documents in their respective capacities as the proper officer of corporations that were associated entities of Mr Moran (see [27]-[29] above). 84 Each of the schedules to which the Additional Orders refer is expressed in terms that suffer from similar defects to the terms of the summonses. Notably, and without necessarily being exhaustive: (a) the documents which the Additional Orders require Ms Paterson and Ms Stevenson to produce are not expressly stated to be limited to documents in their possession (and that is an express limit on the power in s 81(11A)); (b) the documents are all described in terms of what they "evidence"; and (c) some of the descriptions of documents in the orders are not expressed in terms that would limit the class of documents that must be produced to documents that relate to the examinable affairs of Mr Moran. 85 I acknowledge that it would potentially be possible for me to amend the orders of the registrar rather than simply setting them aside, and that that might normally be the preferable course. However, given the conclusion I have reached above that the summonses should be set aside insofar as they require the production of documents, I think the better course is to set aside the Additional Orders. That is because (a) there are various ways the terms of the schedules could potentially be amended, (b) the parties did not address me in any detail about how the orders should be dealt with, and (c) I consider that, as with a summons issued that includes a requirement to produced documents, it is appropriate that the Trustee in the first instance take the care to draft proposed orders under s 81(11A) in terms that take account of the principles referred to in these reasons. 86 Again, it will be open to the Trustee to make a new application for orders under s 81(11A) requiring Ms Paterson and Ms Stevenson (in their respective capacities as the proper officers of corporations associated with Mr Moran) to produced documents in their possession, providing they are appropriately limited.

Conclusion 87 Each of the summonses will be discharged insofar as it requires the person to whom it is addressed to produce documents. The Additional Orders, being orders 2, 3 and 4 made by the registrar on 1 May 2024, will be set aside. 88 The Trustee will be at liberty to apply for further orders under s 81(11A) as she sees fit, providing that they are carefully drafted taking into account these reasons. 89 I will hear the parties as to costs and any other orders. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald.

SCHEDULE OF PARTIES WAD 47 of 2024 Interested Parties Fourth Interested Party: NICHOLAS JOHN MANN Fifth Interested Party: GINO D'ANNA